V.SRIHARAN @ MURUGAN Vs UNION OF INDIA AND OTHERS
Bench: P SATHASIVAM,RANJAN GOGOI,SHIVA KIRTI SINGH
Case number: Transfer Case (crl.) 1 of 2012
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION
TRANSFERRED CASE (CRIMINAL) NO. 1 OF 2012
V. Sriharan @ Murugan .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
WITH
TRANSFERRED CASE (CRIMINAL) NO. 2 OF 2012
T. Suthendraraja @ Santhan .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
TRANSFERRED CASE (CRIMINAL) NO. 3 OF 2012
A.G. Perarivalan @ Arivu .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
J U D G M E N T
P.Sathasivam, CJI.
1) The above transferred cases which were borne out of
the writ petitions filed by V. Sriharan @ Murugan, T.
Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu in
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the Madras High Court and which got transferred to this
Court under Article 139A of the Constitution of India raise
vital issues pertaining to violation of fundamental rights of
death row convicts ensuing from inordinate delay caused
at the hands of executive in deciding the mercy petitions
filed under Article 72/161 of the Constitution. In all the writ
petitions, the petitioners prayed for a writ of declaration
declaring that the execution of the sentence of death,
pursuant to the letter No. F.No.14/1/1999-Judicial Cell
dated 12.08.2011 issued by the Union of India, is
unconstitutional and thus sought for commutation of the
sentence of death to imprisonment for life.
2) Akin to this issue was decided by us in a recent
judgment viz., Shatrughan Chauhan & Anr. vs. Union
of India & Ors. [Writ Petition (Criminal) No. 55 of 2013
etc.] decided on 21.01.2014 wherein this Court held that
execution of sentence of death on the accused
notwithstanding the existence of supervening
circumstances, is in violation of Article 21 of the
Constitution. One of the supervening circumstances
sanctioned by this Court for commutation of death
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sentence into life imprisonment is the undue, inordinate
and unreasonable delay in execution of death sentence as
it attributes to torture. However, this Court, cogently
clarified in its verdict that the nature of delay i.e. whether
it is undue or unreasonable must be appreciated based on
facts of individual cases and no exhaustive guidelines can
be framed in this regard. The relevant portion of
Shatrughan Chauhan (supra), is as under:-
“42) Accordingly, if there is undue, unexplained and 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 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…”
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“54) … 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.”
3) Accordingly, the case at hand has to be decided
under the guidance of this judgment. The two principles
stipulated in the judgment for commutation of death
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sentence into life imprisonment on the ground of delay as
the supervening circumstance are firstly, that the delay
occurred must be inordinate and secondly, that the delay
must not be caused at the instance of the accused. Let us
assess the facts of the given case in the light of
established principles in Shatrughan Chauhan (supra).
Factual Background:
4) In these petitions, we are concerned only with the
rejection of the mercy petitions of the petitioners by the
President of India under Article 72 of the Constitution after
the confirmation of death sentence by this Court, thus
there is no need to traverse the factual details leading up
to the imposition of death sentence.
5) Initially, the mercy petitions were filed before the
Governor of Tamil Nadu on 17.10.1999 and the Governor,
on 27.10.1999, rejected the same. Subsequently, the said
rejection was challenged before the Madras High Court in
W.P. Nos. 17655-17658 of 1999 on the ground that the
mercy petitions were decided without consulting the
Council of Ministers, which is unsustainable in law.
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Accordingly, by order dated 25.11.1999, the Madras High
Court set aside the order of rejection of mercy petitions by
the Governor and directed to reconsider the mercy
petitions afresh. Thereafter, on 25.04.2000, the Governor
again rejected the mercy petitions.
6) Consequently, the mercy petitions were forwarded to
the President on 26.04.2000 for consideration under
Article 72 of the Constitution. The President, on
12.08.2011, rejected these mercy petitions after a delay of
more than 11 years. The rejection of the aforesaid
petitions was communicated to the petitioners on
25.08.2011. Subsequently, the said rejection was also
challenged in W.P. Nos. 20287-20289 of 2011 before the
Madras High Court on 29.08.2011. Later, by order dated
01.05.2012, in Transfer Petition (Criminal) Nos. 383-385 of
2011 and 462-464 of 2011, this Court transferred all the
three writ petitions to this Court in the interest of justice.
Pursuant to the aforesaid order, the Madras High Court
transmitted the original records to this Court, which have
been registered as Transferred Case (Criminal) Nos. 1-3 of
2012. All the petitioners are currently lodged in the
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Central Prison, Vellore, Tamil Nadu and they are in
incarceration since 1991, i.e., for more than two decades.
7) Heard Mr. Ram Jethmalani, learned senior counsel,
Mr. Yug Mohit Chaudhary, learned counsel for the
petitioners and Mr. Goolam E. Vahanvati, learned Attorney
General and Mr. Sidharth Luthra, learned Additional
Solicitor General for the Union of India.
Contentions:
8) The only contention, as projected by Mr. Ram
Jethmalani, learned senior counsel and Mr. Yug Mohit
Chaudhary, learned counsel for the petitioners is that in
view of inordinate delay of more than 11 years in disposal
of mercy petitions, the sentence of death imposed upon
the petitioners herein is liable to be commuted to life
imprisonment as it is violative of Article 21 of the
Constitution in addition to various International
Conventions, Universal Declarations, to which India is a
signatory. In support of their contention, they heavily
relied on Shatrughan Chauhan (supra).
9) On the other hand, Mr. Goolam E. Vahanvati, learned
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Attorney General, assisted by Mr. Sidharth Luthra, learned
Additional Solicitor General, submitted that the delay
caused was not at the instance of the head of the
executive and is not unreasonable. They further submitted
that even if there was inordinate delay in disposal of
mercy petitions in the light of the principles enunciated in
Shatrughan Chauhan (supra) and also from the
information furnished by the petitioners in their affidavits
filed before the High Court praying for commutation, the
petitioners have not made out a case for passing similar
order of commutation as ordered in Shatrughan
Chauhan (supra).
Points for Consideration:
10) Firstly, as mentioned earlier, the question whether
inordinate delay in disposing of mercy petitions is a
supervening circumstance for commutation of sentence of
death into life imprisonment is well settled in view of the
recent verdict in Shatrughan Chauhan (supra). As a
result, the task before this Court is confined only to finding
out whether the nature of delay caused is reasonable or
inordinate in the light of the circumstances of the given
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case and to verify whether the delay was caused at the
instance of accused.
11) The second point for consideration before this Court is
whether in Shatrughan Chauhan (supra), this Court,
laid down for actually proving the dehumanizing effect on
the accused or mere unreasonable and inordinate delay on
face of it is sufficient for commutation of death sentence to
life.
Discussion:
12) After having carefully analyzed all the materials and
rival contentions, now let us venture to distinctively
discuss on the aforesaid issues. At the outset, let us
examine whether the delay of 11 years in disposing of
mercy petitions is unreasonable and inordinate in the light
of the facts of the given case.
13) Following the rejection of mercy petitions of the
petitioners herein by the Governor on 25.04.2000, these
petitions were forwarded to the Ministry of Home Affairs,
Government of India on 04.05.2000. After an unreasonable
delay of 5 years and 1 month, on 21.06.2005, the Ministry
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of Home Affairs submitted the petitioners’ mercy petitions
to the President for consideration. Thereafter, on
23.02.2011, the Ministry of Home Affairs recalled the
petitioners’ mercy petitions from the office of the
President. Here also, there was a delay of 5 years and 8
months. Ultimately, the President, on 12.08.2011, rejected
these mercy petitions after a delay of more than 11 years.
14) Across the bar, learned Attorney General, while
explaining the delay ensued i.e., 5 years and 1 month
submitted that shortly after the receipt of the mercy
petitions in 2000, a note was prepared but thereafter the
file was lying in the drawer of some officer of the Ministry
of Home Affairs, and, hence, could not be processed. As
regards delay of 5 years and 8 months, learned Attorney
General fairly admitted that this delay couldn’t be
explained in any way.
15) It is, therefore, indisputable that the delay ensued in
the given petitions is inordinate and unreasonable and the
same was not caused at the instance of the petitioners.
Accordingly, the unreasonable delay caused qualifies as
the supervening circumstance, which warrants for
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commutation of sentence of death into life imprisonment
as stipulated in Shatrughan Chauhan (supra), inter
alia, the judicial decisions in Triveniben vs. State of
Gujarat (1988) 4 SCC 574, Sher Singh and Ors. vs.
State of Punjab (1983) 2 SCC 344 and T.V.
Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC
68.
16) Exorbitant delay in disposal of mercy petition renders
the process of execution of death sentence arbitrary,
whimsical and capricious and, therefore, inexecutable.
Furthermore, such imprisonment, occasioned by inordinate
delay in disposal of mercy petitions, is beyond the
sentence accorded by the court and to that extent is extra-
legal and excessive. Therefore, the apex constitutional
authorities must exercise the power under Article 72/161
within the bounds of constitutional discipline and should
dispose of the mercy petitions filed before them in an
expeditious manner.
17) As regards the second contention, it was argued by
learned Attorney General that the test laid down by this
Court in cases involving delayed mercy petitions requires
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the petitioners to actively demonstrate the sufferings
occasioned by the delay, and that in the present case, the
petitioners have been having a good time in prison and
they have not suffered at all. Hence, it is argued that the
petitioners are not entitled to relief.
18) Before we advert to respond the aforesaid contention,
it is relevant to comprehend the primary ground on the
basis of which the relief was granted in cases of delayed
disposal of the mercy petition and that is, such delay
violates the requirement of a fair, just and reasonable
procedure. Regardless and independent of the suffering it
causes, delay makes the process of execution of death
sentence unfair, unreasonable, arbitrary and capricious
and thereby, violates procedural due process guaranteed
under Article 21 of the Constitution and the dehumanizing
effect is presumed in such cases. It is in this context, this
Court, in past, has recognized that incarceration, in
addition to the reasonable time necessary for adjudication
of mercy petitions and preparation for execution, flouts the
due process guaranteed to the convict under Article 21
which inheres in every prisoner till his last breath.
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19) This Court has consistently held that prolonged delay
in execution of death sentence, by itself, gives rise to
mental suffering and agony which renders the subsequent
execution of death sentence inhuman and barbaric. In
Shatrughan Chauhan (supra), this Court held as under:
“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. 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.” …”
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“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.”
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“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
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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 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”.”
20) Thus, the argument that the petitioners are under a
legal obligation to produce evidence of their sufferings and
harm caused to them on account of prolonged delay is
unknown to law and will be misinterpretation of
Shatrughan Chauhan (supra). Such a prerequisite
would render the fundamental rights guaranteed under
Part III of the Constitution beyond the reach of death-row
convicts and will make them nugatory and inaccessible for
all intent and purposes. Besides, there is no requirement in
Indian law as well as in international judgments for a
death-row convict to prove actual harm occasioned by the
delay. There is no obligation on the convict to
demonstrate specific ill effects of suffering and agony on
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his mind and body as a prerequisite for commutation of
sentence of death.
21) In any case, the petitioners have extensively pleaded
the nature of their sufferings both in the petitions as well
as in the reminder letters which each of them repeatedly
have sent to the President which remained unheeded. As
regards the argument of learned Attorney General, viz.,
the petitioners were enjoying themselves in prison, a
perusal of specific averments in their writ petitions filed
before the High Court shows a different picture. All the
petitioners highlighted that the delay caused unendurable
torture to them and they repeatedly requested the
authorities to forthwith decide their mercy petitions.
22) In Transferred Case (Crl.) No. 1 of 2012 (V. Sriharan
@ Murugan), in Writ Petition No. 20287 of 2011 filed before
the High Court, in para 5, the petitioner has expressed his
grievance in the following manner:
“I state that the extraordinary and unjustified delay in deciding my mercy petition is entirely caused by the office of the Hon’ble President of India. For each day after the sentence of death was confirmed by the Hon’ble Supreme Court, and while my mercy petition was pending before the Hon’ble President of India, my family and I have undergone a living hell not knowing whether I would live or
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die, and whether I would live to see another day or draw another breath, or whether that day and that breath would be my last. I state that I have been swinging between life and death for these past many years confined in a single cell. I state that I have suffered enough and that it would not be in the interests of justice to compound this suffering by executing me. I submit that the interests of justice would be served by converting the sentence of death to one of life imprisonment. I state that cases where the delay has been less than half of what it is in the present case have been held by the Hon’ble Supreme Court and this Hon’ble Court to be unconscionable and excessive and in breach of Article 21, warranting substitution of death sentence by a sentence of life.”
In paragraph 22, the petitioner has stated as under:
“I state that I have been in custody since 4.6.1991, i.e. for more than 20 years. I have been under sentence of death since the judgment of the trial court on 28.1.1998, i.e. for more than 13 years and 7 months. I further state that after the rejection of my review petition by the Supreme Court on 8.10.1999, i.e. for a period of about 11 years and 10 months, I have lived under the shadow of the hangman’s noose. During this period, I have been kept in a single cell, with the threat of imminent death hanging over my head. My mercy petition was filed more than 11 years and 4 months ago (about 4100 days). During this long period, I have suffered excruciating mental agony and torture of a kind that is difficult to imagine or conceptualize. I have been swinging between life and death, believing every waking minute to be my last, not knowing whether I will be spared or not, and when the hangman’s noose will close around my neck. Every person passing my prison cell is imagined to be the harbinger of news regarding the outcome of the mercy petition, or the date of my execution. Such torment is a punishment far worse than death.”
23) In the year 2005, the petitioner-Sriharan @ Murugan
sent a representation to the President of India reminding
the pendency of his mercy petition. In that letter, apart
from highlighting his pathetic position, he asserted that “it
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has been 5 years since I had sent my petition
requesting Justice. I live like a moving dead body
with the rope tangling in front of my eyes always in
solitary confinement. I request justice but not
mercy.”
24) In another letter dated 17.06.2006, addressed to the
President, he asserted to the sufferings of his family
members in the following words:
“For about 8 years, I have been serving sentence as death sentence convict. So, the sufferings of my parents, brothers, wife and daughter can not be described in words. I ask God daily why they should suffer due to me. No body knows how many times the convicts who are sentenced to death like me die and how many times they dream about their being hanged and no body knows about this truth. No one who loves consciousness, humanity and truth do not fear death. But with the aim of making sacrificial goat, after being sentenced to death, and justice is not done for years together and being harassed and under the circumstances, there is every change for a man to disintegrate. When one’s life is unreasonably wasted, no human being can lead life without fear or suffering. This confusion and fear is very bad misery. I have been suffering this for many years. I request you to grant reduction of punishment and render justice at the earliest.”
In the subsequent letter dated 10.03.2007, addressed to
the President of India, the petitioner has stated:
“Sir, 16 years have passed since I and my wife were imprisoned. The female child born to us in jail is suffering without security and education as a nomad. During this long time, the suffering undergone and
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undergoing now by our family members can not be said in words. Thinking of punishing me have punished my entire family. So, my life in jail has become a living death.”
In the same way, he also made several subsequent letters
to the President highlighting his pathetic position, torture,
sufferings of his family, etc.
25) In Transferred Case (Crl.) No. 2 of 2012 (T.
Suthendraja @ Santhan) in Writ Petition No. 20288 of 2011
filed before the High Court and Transferred Case (Crl.) No.
3 of 2012 (A.G. Perarivalan @ Arivu) in Writ Petition No.
20289 of 2011 filed before the High Court, both the
petitioners/death convicts have expressed their grievance
in similar terms like the co-convict Murugan. These
petitioners also sent similar letters to the President
highlighting their agony in the prison and prayed for
earlier disposal of their mercy petitions. They also
highlighted sufferings on account of solitary confinement,
mental agony, etc.
26) Having perused all the averments specifically averred
in the writ petitions as well as the copies of the
communication addressed to the Ministry of Home Affairs
and to the President of India and also in view of other
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information/materials available in the affidavit filed before
the High Court in the year 2011, we are unable to accept
the views expressed by learned Attorney General on this
point.
Conclusion:
27) At the outset, we once again clarify that the relief
sought for under these kind of petitions is not per se
review of the order passed under Article 72/161 of the
Constitution on merits but on the ground of violation of
fundamental rights guaranteed under the Constitution to
all the citizens including the death row convicts.
28) The clemency procedure under Article 72/161
provides a ray of hope to the condemned prisoners and his
family members for commutation of death sentence into
life imprisonment and, therefore, the executive should
step up and exercise its time-honored tradition of
clemency power guaranteed in the Constitution one-way
or the other within a reasonable time. Profuse deliberation
on the nature of power under Article 72/161 has already
been said in Shatrughan Chauhan (supra) and we
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embrace the same in the given case as well.
29) We are confident that the mercy petitions filed 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. The fact that no time limit is
prescribed to the President/Governor for disposal of the
mercy petition should compel the government to work in a
more systematized manner to repose the confidence of
the people in the institution of democracy. Besides, it is
definitely not a pleasure for this Court to interfere in the
constitutional power vested under Article 72/161 of the
Constitution and, therefore, we implore upon the
government to render its advice to the President within a
reasonable time so that the President is in a position to
arrive at a decision at the earliest.
30) Before we conclude, we would also like to stress on
one more aspect. We have learnt that the Union
Government, considering the nature of the power under
Article 72/161, set out certain criteria in the form of
circular for deciding the mercy petitions. We hereby
recommend that in view of the recent jurisprudential
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development with regard to delay in execution, another
criteria may be added to the existing yardsticks so as to
require consideration of the delay that may have occurred
in disposal of a mercy petition.
31) In the light of the above discussion and observations,
in the cases of V. Sriharan @ Murugan, T. Suthendraraja @
Santhan and A.G. Perarivalan @ Arivu, we commute their
death sentence into imprisonment for life. Life
imprisonment means end of one’s life, subject to any
remission granted by the appropriate Government under
Section 432 of the Code of Criminal Procedure, 1973
which, in turn, is subject to the procedural checks
mentioned in the said provision and further substantive
check in Section 433-A of the Code. All the writ petitions
are allowed on the above terms and the transferred cases
are, accordingly, disposed of.
……….…………………………CJI. (P. SATHASIVAM)
……….……………………………J. (RANJAN GOGOI)
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..….….……………………………J. (SHIVA KIRTI SINGH)
NEW DELHI; FEBRUARY 18, 2014.
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