SHABNAM Vs UNION OF INDIA AND ANR.
Bench: A.K. SIKRI,UDAY UMESH LALIT
Case number: Writ Petition (crl.) 88 of 2015
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 88 OF 2015
SHABNAM .....PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. .....RESPONDENT(S)
W I T H
WRIT PETITION (CRIMINAL) NO. 89 OF 2015
O R D E R
A.K. SIKRI, J.
Rule.
2) Ms. Pinky Anand, learned ASG, accepts notice on behalf of Union
of India and Ms. Pragati Neekhra, learned counsel, accepts notice
on behalf of State of Uttar Pradesh.
3) With the consent of the learned counsel appearing for the parties,
we have taken up these petitions for final hearing and propose to
dispose of these writ petitions by this order.
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 1 of 18
Page 2
4) Writ Petition (Criminal) No. 88 of 2015 is filed by Shabnam and
Writ Petition (Criminal) 89 of 2015 is filed by National Law
University, Delhi, espousing the cause of Salim. Both Shabnam
and Salim (hereinafter referred to as, “the convicts”) were
co-accused in a murder case, that was tried against them on the
allegations that they had committed murders of seven persons
who were the members of Shabnam's family during the
intervening night of 14th and 15th April, 2008. They were tried
together and after the trial, the learned Sessions Court returned
with the finding holding them guilty of the said murders, for which
they were charged and pronounced death sentence on both these
convicts vide Judgment and Sentence dated 15.07.2010, subject
to confirmation by the High Court.
5) The High Court of Allahabad confirmed the death sentence of
both the convicts vide Judgment and order dated 26.04.2013. The
Judgment of the High Court was challenged in this Court and on
15.05.2015, the appeals of the convicts were dismissed by this
Court as well, thereby confirming the conviction as well as
sentence of death imposed on them.
6) The present writ petitions are filed on the allegations that on
21.05.2015, death warrants have been issued by the learned
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 2 of 18
Page 3
Sessions Judge, which are impermissible inasmuch as various
remedies which are available to the convicts, even after the
dismissal of the appeals by this Court, are still open and yet to be
exercised by them. It is submitted that these convicts can file
review petition seeking review of the judgment dated 15.05.2015.
They also have the right to file mercy petitions to the Governor of
Uttar Pradesh and to the President of India. In these
circumstances, the execution of the death warrants within six
days of the dismissal of the Criminal Appeals is challenged as
illegal and contrary to the provisions of Article 21 of the
Constitution of India.
7) Notice of these petitions was issued to the Union of India as well
as to the State of Uttar Pradesh on 25.05.2015. Ms. Pinky Anand,
learned ASG, has appeared on behalf of the Union of India and
Ms. Pragati Neekhra, learned counsel, has appeared on behalf of
the State of Uttar Pradesh.
8) Ms. Pinky Anand, learned ASG, has brought to our notice the
instructions issued by the Ministry of Home Affairs, Government of
India, which delineates the procedure regarding petitions for
mercy in death sentence cases. She has referred to the following
portion from the said instructions which impose certain duties on
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 3 of 18
Page 4
the Superintendent of Jail in connection with petitions for mercy
from or on behalf of the convicts in sentence of death, paragraph
(II) thereof reads as under:
“On receipt of the intimation of the dismissal by the Supreme Court of the appeal or the application for special leave to appeal to it lodged by or on behalf of the convict, in case the convict concerned has made no previous petition for mercy, the Jail Superintendent shall forthwith inform him (the convict) that if he desires to submit a petition for mercy it should be submitted in writing within seven days of the date of such intimation.”
9) She fairly stated that the death warrants would not be executed
immediately and the procedure laid down as per the aforesaid
instructions of the Ministry of Home Affairs shall be followed. The
learned counsel for the State of Uttar Pradesh also informed this
Court that after the death warrants dated 21.05.2015 issued by
the learned Sessions Judge were received by the Superintendent
of Jail, the Superintendent of Jail sent these death warrants back
to the learned Sessions Judge pointing out that the warrants were
defective as the date and time of execution of the death sentence
was not affixed thereupon.
10) The learned senior counsel appearing for the petitioners, on the
other hand, submitted that merely following the procedure as
contained in the instructions issued by the Ministry of Home
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 4 of 18
Page 5
Affairs would not suffice. It was the submission of Mr. Anand
Grover, learned senior counsel, that this procedure is applicable
in respect of petitions for mercy.
11) On the other hand, in so far as the present case is concerned, the
stage of petition for mercy has not yet come inasmuch as the
convicts have right to file an application for review in this Court
seeking review of the Judgment dated 15.05.2015, vide which,
the appeals of both the convicts were dismissed. He has also
drawn our attention to the Judgment of the Division Bench of the
Allahabad High Court in a matter titled as Peoples' Union for
Democratic Rights (PUDR) v. Union of India & Ors.1 He has
submitted that in the said case, the High Court has mandated the
following procedure which has to be followed before the execution
of the death sentence. The said portion from the judgment is
extracted below:
“We are affirmatively of the view that in a civilized society, the execution of the sentence of death cannot be carried out in such an arbitrary manner, keeping the prisoner in the dark and without allowing him recourse and information. Essential safeguards must be observed. Firstly, the principles of natural justice must be read into the provisions of Sections 413 and 414 of Cr. P. C. and sufficient notice ought to be given to the convict before the issuance of a warrant of death by the sessions court that would enable the convict to consult his advocates and to be represented in the
1 PIL No. 57810 of 2014 decided on 28.01.2015
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 5 of 18
Page 6
proceedings. Secondly, the warrant must specify the exact date and time for execution and not a range of dates which places a prisoner in a state of uncertainty. Thirdly, a reasonable period of time must elapse between the date of the order on the execution warrant and the date fixed or appointed in the warrant for the execution so that the convict will have a reasonable opportunity to pursue legal recourse against the warrant and to have a final meeting with the members of his family before the date fixed for execution. Fourthly, a copy of the execution warrant must be immediately supplied to the convict. Fifthly, in those cases, where a convict is not in a position to offer a legal assistance, legal aid must be provided. These are essential procedural safeguards which must be observed if the right to life under Article 21 is not to be denuded of its meaning and content.”
12) He also pointed out that this Court has laid down several
guidelines to govern cases involving capital punishment in the
case of Shatrughan Chauhan v. Union of India & Ors.2
13) In the present case, we find that this Court pronounced the
judgment dated 15.05.2015 confirming the death penalty and
within six days of the dismissal of the criminal appeals filed by
these convicts, the learned Sessions Judge issued the death
warrants on 21.05.2015. This is clearly impermissible and
unwarranted for various reasons, as discussed hereinafter:
(I) First and foremost reason is that the convicts have not exhausted
their judicial and administrative remedies, which are still open to
2 (2014) 3 SCC 1
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 6 of 18
Page 7
them even if their appeals in the highest Court have failed
affirming the imposition of death penalty. Those appeals were
filed via the route of Article 136 of the Constitution. However, law
gives such persons another chance, namely, to seek review of the
orders so passed, by means of filing of review petition. It is to
provided under Article 137 of the Constitution. The limitation of 30
days is prescribed for filing such review petitions. We have to
emphasize at this stage that in case of convicts facing death
penalty, the remedy of review has been given high procedural
sanctity.
In the case of Mohd. Arif @Ashfaq v. Registrar, Supreme
Court of India & Ors.3, the Constitution Bench of this Court has
laid down that the review petition in a case of death sentence
shall be heard in the open court by giving an opportunity to the
review petitioner to make oral submissions, unlike other review
petitions which are decided by the Court by circulation in
Chambers. Not only this, such a review petition is to be heard by
a Bench consisting of minimum three Judges. Following
discussion from the said Constitutional Bench judgment will bring
home the importance which we are attaching to these review
petitions:
3 (2014) 9 SCC 737
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 7 of 18
Page 8
“30...A sentence is a compound of any factors, including the nature of the offence as well as the circumstances extenuating or aggravating the offence. A large number of aggravating circumstances and mitigating circumstances have been pointed out in Bachan Singh v. State of Punjab, (1980) 2 SCC 684, SCC at pp. 749-50, paras 202 & 206, that a Judge should take into account when awarding the death sentence. Again, as pointed out above, apart from the fact that these lists are only illustrative, as clarified in Bachan Singh itself, different judicially trained minds can apply different aggravating and mitigating circumstances to ultimately arrive at a conclusion, on considering all relevant factors that the death penalty may or may not be awarded in any given case. Experience based on judicial decisions touching upon this aspect amply demonstrate such a divergent approach being taken. Though, it is not necessary to dwell upon this aspect elaborately, at the same time, it needs to be emphasized that when on the same set of facts, one judicial mind can come to the conclusion that the circumstances do not warrant the death penalty, whereas another may feel it to be a fit case fully justifying the death penalty, we feel that when a convict who has suffered the sentence of death and files a review petition, the necessity of oral hearing in such a review petition becomes an integral part of “reasonable procedure”.
31. We are of the opinion that “reasonable procedure” would encompass oral hearing of review petitions arising out of death penalties. The statement of Justice Holmes, that the life of law is not logic; it is experience, aptly applies here.
32. The first factor mentioned above, in support of our conclusion, is more fundamental than the second one. Death penalty is irreversible in nature. Once a death sentence is executed, that results in taking away the life of the convict. If it is found thereafter that such a sentence was not warranted, that would be of no use as the life of that person cannot be brought back. This being so, we feel that if the fundamental right to life is involved, any procedure to be just, fair and reasonable should
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 8 of 18
Page 9
take into account the two factors mentioned above. Tht being so, we feel that a limited oral hearing een at the review stage is mandated by Art. 21 in all death sentence cases.”
Therefore, the right to file Review Petition is a valuable right
given to the convicts who are imposed death penalty.
(II) That apart, right to file mercy petitions to the Governor of the
State as well as to the President of India also remains in tact.
These remedies are also of substance and not mere formalities.
This remedy is again a constitutional remedy as Executive Head
is empowered to pardon the death sentence (this power lies with
the President under Article 72 and with the Governor of the State
under Article 161 of the Constitution). Thus, power to pardon is a
part of the constitutional scheme which has been reposed by the
people through the Constitution in the Head of the State, and
enjoys high status. In exercise of their powers, the President or
the Governor, as the case may be, may examine the evidence
afresh and this exercise of power is clearly independent of the
judiciary. It is clarified by this Court that while exercising such a
power, the Executive is not sitting as a Court of Appeal. Rather
power to grant remission of sentence is an act of grace, humanity
in appropriate cases, i.e. distinct, absolute and unfettered in
nature (See Shatrughan Chauhan (supra)). Even this Court in
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 9 of 18
Page 10
V. Sriharan @ Murugan v. Union of India & Ors.4 observed that
clemency procedure under Articles 72/161 of the Constitution
provides a ray of hope to the condemned prisoners and his family
members for commutation of death sentence into life
imprisonment. Of course, in a given case, it would be for the
convict to make out a justifiable case for remission of death
sentence. However, what is emphasized in the present context is
that this is again a constitutional remedy provided to the convicts
of death sentence and they have a right to avail this remedy
which cannot be snatched by executing the death sentence
before even giving such convicts a chance or opportunity to avail
the same. For this purpose, State has to wait for reasonable
period, even after such convicts fail in the review petition, if they
so file.
Otherwise, there would be violation of the famous rhetoric of
Emperor Ashoka who said 'State should not punish with
vengeance'.
(III) Article 21 of the Constitution lays down that nobody shall be
deprived of his life and liberty except according to the procedure
established by law. After long judicial debate, it now stands
settled that the procedure established by law has to be 'due
4 (2014) 4 SCC 242
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 10 of 18
Page 11
procedure' (See Maneka Gandhi v. Union of India5). By judicial
interpretation, this Court has read the principle of reasonableness
into the said procedure contemplated by Article 21, holding that it
must be 'right and just and fair' and not arbitrary, fanciful or
oppressive. Even as per the statute book, this procedure does
not culminate with the dismissal of appeals of the convicts by the
final Court. No doubt, when an accused is tried of an offence by a
competent court of law and is imposed such death penalty and
the said death penalty is upheld by the highest Court, the
procedure that is established by law has been followed up to this
stage. However, in the statutory framework, further procedural
safeguards in the form of judicial review as well as mercy petitions
are yet to be traversed. This would also be covered by the
expression 'procedure established by law' occurring in Article 21.
Therefore, till the time limitation period for filing the review petition
and thereafter reasonable time for filing the mercy petition has not
lapsed, issuing of death warrants would be violative of Article 21.
(IV) There is another facet of right to life enshrined in Article 21 of the
Constitution which needs to be highlighted at this juncture,
namely, 'human dignity'. Article 21 has its traces in the dignity of
human being. It has been recognized as part of Article 21 of the
5 (1978) 1 SCC 248
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 11 of 18
Page 12
Constitution. We would like to extract the following passage from
National Legal Services Authority v. Union of India & Ors.6:
“106. The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set up. Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method by which we attempt to raise the living standard of the people and to give opportunities to every person to develop his/her personality. It is founded on peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex/gender identity which is integral his/her personality and is one of the most basic aspect of self-determination dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity.”
14) Once we recognize this aspect of dignity of human being, it does
not end with the confirmation of death sentence, but goes beyond
and remains valid till such a convict meets his/her destiny.
Therefore, the process/procedure from confirmation of death
sentence by the highest Court till the execution of the said
sentence, the convict is to be treated with human dignity to the
extent which is reasonable and permissible in law.
15) This right to human dignity has many elements. First and
foremost, human dignity is the dignity of each human being 'as a
6 (2014) 5 SCC 438
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 12 of 18
Page 13
human being'. Another element, which needs to be highlighted, in
the context of the present case, is that human dignity is infringed
if a person's life, physical or mental welfare is armed. It is in this
sense torture, humiliation, forced labour, etc. all infringe on human
dignity. It is in this context many rights of the accused derive from
his dignity as a human being. These may include the
presumption that every person is innocent until proven guilty; the
right of the accused to a fair trial as well as speedy trial; right of
legal aid, all part of human dignity. Even after conviction, when a
person is spending prison life, allowing humane conditions in jail
is part of human dignity. Prisons reforms or Jail reforms
measures to make convicts a reformed person so that they are
able to lead normal life and assimilate in the society, after serving
the jail term, are motivated by human dignity jurisprudence.
16) In fact, this principle of human dignity has been used frequently
by Courts in the context of considering the death penalty itself.
Way back in the year 1972, the United States Supreme Court
kept in mind this aspect in the case of Furman v. Georgia7. The
Court, speaking through Brennan, J., while considering the
application of Eighth Amendment's prohibition on cruel and
unusual punishments, summed up the previous jurisprudence on
7 408 US 238 (1972)
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 13 of 18
Page 14
the Amendment as 'prohibit(ing) the infliction of uncivilized and
inhuman punishments. The State, even as it punishes, must treat
its members with respect for their intrinsic worth as human
beings. A punishment is 'cruel and unusual', therefore, if it does
not comport with human dignity'. In Gregg v. Georgia8, that very
Court, again through Brennan, J., considered that 'the fatal
constitutional infirmity in the punishment of death is that it treats
“members of the human race as non-humans, as objects to be
toyed with an discarded. (It is), thus, inconsistent with the
fundamental premise of the clause that even the vilest criminal
remains a human being possessed of common human dignity'.
The Canadian Supreme Court, the Hungarian Constitutional Court
and the South African Supreme Court have gone to the extent of
holding that capital punishment constitutes a serious impairment
of human dignity and imposes a limitation on the essential content
of the fundamental rights to life and human dignity and on that
touchstone declaring that dignity as unconstitutional.
17) In this country, however, since the death penalty has been held to
be constitutionally valid (See Bachan Singh v. State of Punjab9),
we do not have to travel to that extent. At the same time, even if
death sentence is to be awarded, it has to be in accord with due 8 428 US 153 (1976) 9 (1980) 2 SCC 684
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 14 of 18
Page 15
dignity. In fact, this element of human dignity is well recognized in
choosing the mode of execution of death sentence with general
consensus that method of execution of death sentence should be
such which is certain, humane, quick and decent. This was so
stated in the 35th Report of the Law Commission on Capital
Punishment way back in the year 1967. Thereafter, the Law
Commission of India brought out a consultation paper on 'Mode of
Execution of Death Sentence and Incidental Matters' and made
comparative analysis of hanging, intravenous lethal injection and
shooting as the mode of execution. While undertaking this study,
the Law Commission also recognized and emphasized standards
of human decency in the following words:
“ The execution of the death sentence by hanging by rope has to be judged with reference to the objective factors such as the international standards or norms or the climate of the international opinion, modern penological theories and evolving standards of human decency. The standards of human decency with reference to death punishment is required to be judged with reference to various aspects which vary from society to society depending on the cultural and spiritual tradition of the society, its history and philosophy and its sense of moral and ethical values. To take an example, if a sentence of cutting off the arm for the offence of the theft or a sentence of stoning to death for the offence of adultery were prescribed by law, as practiced in South Africa, there can be no doubt that such punishment would be condemned as barbaric and cruel in our country, even though it may be regarded as proportionate to the offence and hence reasonable and just in some other countries. So
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 15 of 18
Page 16
also the standards of human decency vary from time to time even with in the same society. In an evolutionary society, the standards of human decency are progressively evolving to higher levels and what was regarded as legitimate and reasonable punishment proportionate to the offence at one time may now according to the evolving standards of human decency, be regarded as barbaric and inhuman punishment wholly disproportionate to the offence.”
18) United Nations Economic and Social Council (ECOSOC), in its
Economic and Social Council Resolution 1984/50, annex. General
Assembly Resolution 29/118, 1984, described one of the
important standard and safeguards against the death penalty
enunciated in safeguard No.9 as “where capital punishment
occurs it shall be carried out so as to inflict minimum possible
suffering'. Even this Court, more than quarter century ago, laid
down fourfold test that is to be satisfied in the execution of death
penalty in Deena v. Union of India10. This quadruple test is:
(i) The act of execution should be as quick and simple as possible
and free from anything that unnecessarily sharpens the poignancy
of the prisoner's apprehension.
(ii) The act of the execution should produce immediate
unconsciousness passing quickly into the death.
(iii) It should be decent.
(iv) It should not involve mutilation.
10 (1983) 4 SCC 645
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 16 of 18
Page 17
19) We can also draw sustenance from another judgment of this
Court in the case of Sunil Batra v. Delhi Administration & Ors.11
Though in the context of jail conditions for those prisoners
sentenced to death, the Court held that putting them in solitary
confinement was impermissible and provision to this effect was
unconstitutional and violative of a prisoner's fundamental rights
under Article 21, 20(2), 19 and 14 of the Constitution. The Court
held that prisoner in jail still retains his fundamental rights. In the
eternal words of Justice V.R. Krishna Iyer in the said judgment:
“And in our constitutional order it is axiomatic that the prison laws do not swallow up the fundamental rights of the legally unfree, and, as sentinals on the qui-vive, courts will guard freedom behind bars, tempered, of course, by environmental realism but intolerant of torture by executive echelons. The policy of the law and the paramountcy of the Constitution are beyond purchase by authoritarians glibly invoking 'dangerousness' of inmates and peace in prisons”. It is so obvious that the aforesaid ageless message has its root in human dignity which has to be preserved even when a prisoner is sentenced to death.”
20) Thus, we hold that condemned prisoners also have a right to
dignity and execution of death sentence cannot be carried out in a
arbitrary, hurried and secret manner without allowing the convicts
to exhaust all legal remedies.
11 (1978) 4 SCC 494
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 17 of 18
Page 18
21) We find that the procedure prescribed by the High Court of
Allahabad in PUDR's case (supra) is in consonance with Article
21 of the Constitution. While executing the death sentence, it is
mandatory to follow the said procedure and it is also necessary
for the authorities to keep in mind the guidelines contained in the
judgment of this Court in Shatrughan Chauhan's case (supra).
22) Since we find that the death warrants were signed by the
Sessions Judge in a haste, without waiting for the exhaustion of
the aforesaid remedies on the part of the convicts, the same are
hereby quashed and set aside.
23) We direct the respondents to follow the procedure, particularly the
five steps, which are already extracted above, as contained in
PUDR's case (supra) passed by the High Court of Allahabad, for
executing the death sentence.
24) We make the Rule absolute. These writ petitions are allowed in
the aforesaid terms.
.............................................J. (A.K. SIKRI)
.............................................J. (UDAY UMESH LALIT)
NEW DELHI; MAY 27, 2015.
Writ Petition (Crl.) Nos. 88 & 89 of 2015 Page 18 of 18