Page 1 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

1

Page 2 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

2

Page 3 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

3

Page 4 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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Page 5 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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Page 6 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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Page 7 574 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,

7

Page 8 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

8

Page 9 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:

9

Page 10 “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.

10

Page 11 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)

11

Page 12 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:

12

Page 13 “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

13

Page 14 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

14

Page 15 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

15

Page 16 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.

16

Page 17 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).

17

Page 18 (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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Page 19 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].

19

Page 20 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

20

Page 21 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

21

Page 22 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

22

Page 23 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

23

Page 24 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.

24

Page 25 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

25

Page 26 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

26

Page 27 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.

27

Page 28 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

28

Page 29 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

29

Page 30 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

30

Page 31 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

31

Page 32 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

32

Page 33 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

33

Page 34 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

34

Page 35 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

35

Page 36 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

36

Page 37 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

37

Page 38 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

38

Page 39 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

39

Page 40 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

40

Page 41 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

41

Page 42 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

42

Page 43 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, (4

th

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

43

Page 44 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

44

Page 45 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

45

Page 46 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

46

Page 47 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

47

Page 48 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) .

48

Page 49 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

49

Page 50 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

50

Page 51 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

51

Page 52 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

52

Page 53 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

53

Page 54 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

54

Page 55 277, 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

55

Page 56 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”

56

Page 57 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

57

Page 58 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

58

Page 59 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

59

Page 60 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

60

Page 61 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

61

Page 62 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:

62

Page 63 “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

63

Page 64 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

64

Page 65 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, 8

th

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

65

Page 66 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

66

Page 67 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

67

Page 68 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

68

Page 69 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.”

69

Page 70 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

70

Page 71 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,

71

Page 72 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,

72

Page 73 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

73

Page 74 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

74

Page 75 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

75

Page 76 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

76

Page 77 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

77

Page 78 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

78

Page 79 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.

79

Page 80 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

80

Page 81 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

81

Page 82 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

82

Page 83 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.

83

Page 84 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

84

Page 85 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.

85

Page 86 110)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

86

Page 87 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

87

Page 88 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

88

Page 89 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

89

Page 90 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.

90

Page 91 121)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.

91

Page 92 125)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.

92

Page 93 128)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.

93

Page 94 130)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

94

Page 95 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

95

Page 96 (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

96

Page 97 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

97

Page 98 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

98

Page 99 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

99

Page 100 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

100

Page 101 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

101

Page 102 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.

102

Page 103 154)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.

103

Page 104 159)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.

104

Page 105 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

105

Page 106 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:

106

Page 107 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.

107

Page 108 174)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

108

Page 109 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-

109

Page 110 262 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

110

Page 111 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 3

rd

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 4

th

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 5

th

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

111

Page 112 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 6

th

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

112

Page 113 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,

113

Page 114 307 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

114

Page 115 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

115

Page 116 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

116

Page 117 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

117

Page 118 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:

118

Page 119 “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.”

119

Page 120 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

120

Page 121 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

121

Page 122 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

122

Page 123 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

123

Page 124 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,

124

Page 125 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

125

Page 126 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

126

Page 127 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.

127

Page 128 220)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

128

Page 129 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

129

Page 130 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

130

Page 131 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

131

Page 132 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,

132

Page 133 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

133

Page 134 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,

134

Page 135 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

135

Page 136 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

136

Page 137 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,

137

Page 138 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

138

Page 139 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.

139

Page 140 252)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

140

Page 141 are the details regarding delay in disposal of mercy

petitions by the Governor and the President:

Total custody period till date15.10.2001 –

17.12.2013

12 years 2

months

Period under sentence of death29.07.2005 –

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.

141

Page 142 258)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

142

Page 143 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

143

Page 144 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

144

Page 145 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.

145

Page 146 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

146

Page 147 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

147

Page 148 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

148

Page 149 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.

149

Page 150 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

150

Page 151 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

151

Page 152 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.”

152

Page 153 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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Page 154 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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Page 155 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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Page 156 265) 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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