T.V. Vatheeswaran Vs. State of Tamil
Nadu  INSC 12 (16 February 1983)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) MISRA, R.B. (J)
CITATION: 1983 AIR 361 1983 SCR (2) 348 1983
SCC (2) 68 1983 SCALE (1)115
Constitution of India-Art. 21-Prisoner
sentenced to death-Detcntion awaiting execution-Detention excceding two years
violative of guarantee of Fair procedure under Art.
The appellant was sentenced to death in
January, 1975 on a charge of committing wicked and diabolic murders and since
then he was in solitary confinement. Before conviction. he had been a 'prisoner
under remand' for two years.
The appellant's contention was that to take
away his life after keeping him in jail for ten years, eight of which in
illegal solitary confinement, would be violative of Art.
Allowing the appeal and converting the
sentence of death to one of imprisonment for life,
HELD: The dehumanising factor of prolonged
delay in the execution of a sentence of death has the constitutional implication
of depriving a person of his life in an unjust, unfair and unreasonable way so
as to offend the constitutional guarantee that no person shall be deprived of
his life or personal liberty except according. to procedure established by law.
Making all reasonable allowance for the time necessary. for appeal and
consideration of reprieve, a delay exceeding two years in the execution of a
sentence of death should be considered sufficient to entitle the person under
sentence of death to invoke Art. 21 and demand the quashing of the sentence of
death. [359 G-H, 360 D-E] (i) A convict is entitled to the precious right
guaranteed in Art. 21. The right to a speedy trill is implicit in the right to
a fair trial which has been held to be part of the right to life and liberty
guaranteed by this Article.
[357 D, 357 G-H, 358 A] Bhuvan Mohan Patnaik
v. State of A.P.,  2 S.C.R. Sunil Batra v. Delhi Administration,  1
S.C.R. 392; State of Maharashtra v. Prabhakar Pandurang Sanpzgiri & Anr.,
 1 S.C.R. 702; State of, Maharashtra v. Champalal, A.l.R.  S.C.
1675; Hussainara Khatoon (I) v. Home Secretary,  1 S.C.C. 81 and
Hussainara Khatoon (IV) v. Home Secretary,  1 S.C.C. 98 referred to.
349 (ii) Tho Sat of Art. 21 is that any procedure
which deprives a person of his life or liberty must be just, fair and
'reasonable. It implies humane conditions of detention, preventive or punitive.
'Procedure established by law' does not end with the pronouncement of sentence;
it includes the carrying out of sentence. Prolonged detention to await the
execution of a sentence, of death is an unjust, unfair and unreasonable
procedure and the only way to undo the wrong is to quash the sentence of death
[359 D-E, 359 G-H, 360 A] Maneka Gandhi v. Union of India,  2 S.C.R. 621,
Sunil Batra v. Delhi Administration,  1 S.C.R. 392 and Bachan Singh v.
State of Punjab, A.I.R.  S.C. 898 referred to.
(iii) Sentence of death is one thing;
sentence of death followed by lengthy imprisonment prior to execution is
another. A period of anguish and suffering is an inevitable consequence of
sentence of death, but a prolongation of it beyond the time necessary for
appeal and consideration of retrieve is not. And, it is no answer to say that
the man will struggle to stay alive. In truth, it is this ineradicable, human
desire which makes prolongation inhuman and degrading with its 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. Where, after the sentence of death is given, the accused is
made to undergo inhuman, and degrading punishment or where the execution of the
sentence is endlessly delayed and the accused is made to super the most
excruciating agony and anguish, it is open to a court of appeal or a court
exercising writ jurisdiction, in an appropriate proceeding, to take note Of the
circumstance when it is brought to its notice and give relief where necessary.
[352 E-G, 350 F, 360 E] Noel Riley & Ors. v. The Attorney General &
Anr.,  Crl. Law Review 679; Piaradusadh Y. Emperor, A.I.R. 1944 F.C. 1;
Ediga Annamma v. State of Andhra Pradesh,  3 S.C.R. 329; State of U.P. v.
Lalla Singh, A.I.R.
 S.C 168; Bhagwan Baux Singh v. State
of U.P., A.I R  S.C. 34; Sadhu Singh v. State of U.P., A.I.R.  S.C.
1506; State of U.P. v. Sahai, A.I.R.  S.C. 1442 and Furman v. State of
Georgia, 408 U.S. 238, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 75 of 1983.
Appeal by Special leave from the Judgment and
order dated the 20th December, 1976 of. the Madras High Court in Criminal
Appeal No. 182 of 1975 and Referred Trial No. 11 of 1975.
R.K Garg and R. Satish for the Appellant/Petitioner.
A.V. Rangam for the Respondent.
The order of the Court was delivered by 350
CHINNAPPA REDDY, J. A prisoner condemned to death over eight years ago claims
that it is not lawful to hang him now. Let us put the worst against him first.
He was the principal accused in the case and, so to say, the arch- villian of a
villainous piece. He was the brain behind a cruel conspiracy to impersonate
Customs officers' pretend to question unsuspecting visitors to the city of
Madras, abduct them on the pretext of interrogating them, administer sleeping
pills to the unsuspecting victims steal their cash and jewels and finally
murder them. The plan was ingeniously fiendish and the appellant was the
architect. There is no question that the learned Sessions Judge very rightly
sentenced him to death But that was in January 1975. Since then he has been
kept in solitary confinement, quite contrary to our ruling in Sunil Batra v.
Delhi Administra- tion(1). Before that he was a 'prisoner under remand' for two
years. So, the prisoner claims that to take away his life after keeping him in
jail for ten years, eight of which in illegal solitary confinement, is a gross
violation o the Fundamental Right guaranteed by Art. 21 of the Constitution.
Let us examine his claim. First let us get
rid of the cobwebs of prejudice Sure, the murders were wicked and diabolic. The
appellant and his friends showed no mercy to their victims. Why should any
mercy be shown to them? But, gently, we must remind ourselves it is not
Shylock's pound of flesh that are seek, nor a chilling of the human spirit.
It is justice to the killer too and not
justice untempered by mercy that we dispense. Of course, we cannot refuse to
pass the sentence of death where the circumstances cry for it. But, the
question is whether in a case where after the sentence of death is given, the
accused person is made to undergo inhuman and degrading punishment or where the
execution of the sentence is endlessly delayed and the accused is made to
suffer the most excruciating agony and anguish, is it not open to a court of
appeal or a court exercising writ jurisdiction, in an appropriate proceeding,
to take note of the circumstance when it is brought to its notice and give
relief where necessary? Before adverting to the constitutional implications of
prolonged delay in the execution of a sentence of death, let us refer to the
judicial attitude towards such delay in India and elsewhere.
In Piaradusadh v. Emperor(2), the Federal
Court of India took into consideration the circumstance that the appellant had
been 351 awaiting the execution of the death sentence for over a year to alter
the sentence to one of transportation for life.
In Ediga Annamma v. State of Andhra
Pradesh(l), Krishna Iyer and Sarkaria, JJ observed that "the 'brooding
horror of hanging' which has been haunting the prisoner in her condemned cell
for over two years" had an "ameliorative impact" and was "a
factor of humane significance in the sentencing context".
In State of U.P. v. Lalla Singh(2) Gupta and
Kailasam, JJ, were dealing with a case of gruesome murder of three persons, the
head of one of whom was severed. The learned judges, while of the view that the
Sessions Judge was perfectly in order in imposing the sentence of death,
thought that as the offences had been committed More than six years ago, the
ends of justice did not require the sentence of death to be confirmed.
In Bhagwan Baux Singh v. State of U.P.(3),
the sentence of death was commuted to imprisonment for life by Murtaza Fazal
Ali and Kailasam, JJ, having particular regard to the fact that the sentence of
death had been imposed more than two and a half years ago.
In Sadhu Singh v. State of U.P.(4), Sarkaria,
Sen, JJ, and one of us (Chinnappa Reddy, JJ took into account the circumstance
that the appellant was under spectre of the sentence of death for over three
years and seven months to alter the sentence of death to one of imprisonment
In State of U.P. v. Sahai(5), Murtaza Fazal
Ali, Baharul Islam and Varadarajan, JJ, while holding that the murders were
'extremely gruesome, brutal and dastardly', nonetheless declined to pass the
sentence of death on the ground that more than eight years had elapsed since
In Furman v. State of Georgia(6), Justice
Brennan observed, "The prospect of pending execution exacts a frightful
toll during the 352 inevitable long wait between the imposition of sentence and
the actual infliction of death".
In Noel Riley and Ors. v. The Attorney
General and Another(1) the majority of the Lords of the Judicial Committee of
the Privy Council expressed no opinion on the question whether the delayed
execution of a sentence of death by hanging could be described as "inhuman
or degrading punishment". But Lord Scarman and Lord Brightman who gave the
minority opinion, after referring. to the British practice and Furman v. State
of Georgia, People v. Chessman, People v. Anderson, Ediga Anamma v. State of
Andhra Pradesh, Rajendra Prasad v. State of U.P. and Tyrer v. United Kingdom,
"It is no exaggeration, therefore, to
say that the jurisprudence of the civilised world, much of which is derived
from common law principles and the prohibition against cruel and unusual
punishment in the English Bill of Rights, has recognised and acknowledged that
prolonged delay in executing a sentence of death can make the punishment when
it comes inhuman and degrading. As the Supreme Court of California commented in
Anderson's case (supra), it is cruel and has dehumanising effects. Sentence of
death is one thing:
sentence of death followed by lengthy
imprisonment prior to execution is another.
"It is of course true that a period of
anguish and suffering is an inevitable consequence of sentence of death. But a
prolongation of it beyond the time necessary for appeal and consideration of
reprieve is not. And it is no answer to say that the man will struggle to stay
alive. In truth, it is this ineradicable human desire which makes prolongation
inhuman and degrading. The anguish of alternating hope and despair, the agony
of uncertainty, the consequences of such suffering on the mental, emotional,
and physical integrity and health of the individual are vividly described in
the evidence of the effect of the delay in the circumstances of these five
cases. We need not rehearse the facts, which are not in dispute. We do not
doubt that the appellants have proved that they have been subjected to a cruel
and dehumanising experience ...........................................
353 "Prolonged delay when it arises from
factors outside the control of the condemned man can render a decision to carry
out the sentence of death an inhuman and degrading punishment. It is, of
course, for the applicant for constitutional protection to show that the delay
was inordinate, arose from no act of his, and was likely to cause such acute
suffering that the infliction of the death penalty would be in the
circumstances which had arisen inhuman or degrading.
Such a case has been established, in our
view, by these appellants." While we entirely agree with Lord Scarman and
Lord Brightman about the dehumanising effect of prolonged delay after the
sentence of death, we enter a little caveat, but only that we may go further.
We think that the cause of the delay is immaterial when the sentence is death.
Be the cause for the delay, the time necessary for appeal and consideration of
reprieve or some other cause for which the accused himself may be responsible,
it would not alter the dehumanising character of the delay.
What are the constitutional implications of
the dehumanising factor of prolonged delay in the execution of a sentence of
death? Let us turn at once to Art. 21 of the Constitution, for, it is to that
article that we must first look for protection whenever life or liberty is
Art. 21 says: "No person shall be
deprived of his life or personal liberty except according to procedure
established by law." The dimensions of Art. 21 which at one time appeared
to be constricted by A.R. Gopalan v. State of Madras(1) have been truly
expanded by Maneka Gandhi v. Union of India(2) and Sunil Batra etc. v. Delhi
Administration.(3) In Maneka Gandhi v. Union of India(2), it was held that the
various articles of the Constitution in Chapter III (Fundamental Rights) were
not several, isolated walled fortresses, each not reacting on the other, but,
on the other hand, were parts of a great scheme to secure certain basic rights
to the citizens of the country, each article designed to expand but never to
curtail the content of the right secured by the other article. No article was a
complete code in 354 itself and several of the Fundamental Rights guaranteed by
Chapter Ill of the Constitution overlapped each other. So, a law satisfying the
requirements of Art. 21 would still have to meet the challenge of Art. 14 and
Art. 19 of the Constitution. In regard to Art. 21 itself, it was held that the
procedure contemplated by the article had to be fair, just and reasonable, and
not some semblance of procedure, fanciful, oppressive or arbitrary.
Chandrachud. J, (as he then was) said:
"But the mere prescription of some kind
of procedure cannot ever meet the mandate of Art. 21. The procedure prescribed
by law has to be fair, just and reasonable, not fanciful, oppressive or
arbitrary." Chandrachud, J. expressed his total agreement with Bhagawati,
J's following observations:
"The law must, therefore, now be taken
to be well settled that article 21 does not exclude article 19 and that even if
there is a law prescribing a procedure for depriving a person of 'personal
liberty' and there is consequently no infringement of the fundamental right
conferred by article 21, such law, in so far as it abridges or takes away any
fundamental right under article 19 would have to meet the challenge of that
article.' Bhagwati, J. further observed:
"But apart altogether from these
observations in A.K Gopalan's case, which have great weight, we find that even
on principle the concept of reasonableness must be projected in the procedure
contemplated by Art.
21, having regard to the impact of Art. 14 on
Art. 21." Again he said:
"The principle of reasonableness, which
legally as well as philosophically, is an essential element of equality or
non-arbitrariness pervades Art. 14 like a brooding omnipresence and the
procedure contemplated by Art. 21 must answer the test of reasonableness in
order to be in conformity with Art. 14. It must be "right and just and
fair" and pot arbitrary, fanciful or oppressive; otherwise, it would be
355 no procedure at all and the requirement of Art. 21 would A not be satisfied."
In Sunil Batra v. Delhi Administration(1), Krishna Iyer, J. while dealing with
the question whether solitary confinement could be indicted on a person
awaiting death sentence, observed: B "True our Constitution has no 'due
process' clause or the VIII Amendment; but, in this branch of law, after Cooper
and Maneka Gandhi, the consequence is the same. For what is punitively
outrageous, scandalizingly unusual or cruel and rehabilitatively counter-
productive, is unarguably unreasonable and arbitrary and is shot down by "
Arts. 14 and 19 and if inflicted with procedural unfairness, falls foul of Art.
21. Part III of the Constitution does not part company with the prisoner at the
gates, and judicial oversight protects the prisoner's shrunken fundamental
rights, if flouted, frowned upon or frozen by the prison D authority. Is a
person under death sentence or under trial unilaterally dubbed dangerous liable
to suffer extra torment too deep for tears? Emphatically no, lest social
justice, dignity of the individual, equality before the law, procedure
established by law and the seven lamps of freedom (Art. 19) become chimerical
constitutional claptrap." In the same case, Desai, J. said:
"The word "law" in the
expression "procedure established by law" in Art. 21 has been interpreted
to mean in Maneka Gandhi's case (supra) that the law must be right, just and
fair, and not arbitrary, fanciful or oppressive. otherwise it would be no
procedure at all and the requirement of Art. 21 would not be satisfied.
If it is arbitrary it would be violative of
Art. 14." In Bachun Singh v. State of Punjab(2) Sarkaria, J. summarised
the effect of Maneka Gandhi in these words:
356 "In Maneka Gandhi's case, which was
a decision by a Bench of seven learned Judges, it was held by Bhagwati, J. his concurring
judgment, that the expression 'personal liberty' in Art. 21 is of the widest
amplitude and it covers a variety of rights which go to constitute the personal
liberty of man and some of them have been raised to the status of distinct
fundamental rights under Art. 19. It was further observed that Arts. 14, 19 and
21 are not to be interpreted in water-tight compartments, and consequently, a
law depriving a person of personal liberty and prescribing a procedure for that
purpose within the meaning of Art. 21 has to stand the test of one or more of
the fundamental rights conferred under Art. 19 which may be applicable in a
given situation, ex-hypothesi it must also be liable to be tested with
reference to Art. 14. The principle of reasonableness pervades all the three
articles, with the result, that the procedure contemplated by Art. 21 must be
'right and just and fair' and not 'arbitrary, fanciful or oppressive' otherwise
it should be no procedure at all and the requirement of Art. 21 would not be
The learned judge then referred to Art. 21
and said, "If this article is expanded in accordance with the
interpretative principle indicated in Maneka Gandhi, it will read as follows:
"No person shall be deprived of his life
or personal liberty except according to fair, just and reasonable procedure
established by valid law". In the converse positive form, the expanded
Article will read as below:
"A person may be deprived of his life or
personal liberty in accordance with fair, just and reasonable procedure
established by valid law".
"Thus expanded and read for
interpretative purposes, Art. 21 clearly brings out the implication, that the
Founding Fathers recognised the right of the State to deprive a person of his
life or personal liberty in accordance with fair, just and reasonable procedure
established by valid law".
357 The question whether a prisoner under a
lawful sentence of A'. death or imprisonment could claim Fundamental Rights was
considered in Bhuvan Mohan Patnaik v. State of A.P.(l).
Chandrachud, J. (as he then was) declared:
"Convicts are not, by mere reason of the
conviction. denuded of all the Fundamental Rights which they other-wise
possess. A compulsion under the authority of law, following upon a conviction,
to live in a prison house entails to by its own force the deprivation of
fundamental freedoms like the right to move freely throughout the territory of
India or the right to "practise" a profession. A man of profession
would thus stand stripped of his right to hold consultations while serving out
his sentence. But the Constitution guarantees other freedoms like the right to
acquire, hold and dispose of property for the exercise of which incarceration
can be no impediment.
Likewise, even convict is entitled to the
precious right guaranteed by Article 21 of the Constitution that he shall not
be deprived of his life or personal liberty except according to procedure
established by law".
The declaration of Chadrachud, I. in Bhuvan
Mohan Patniak's case was quoted with approval and accepted by the Constitution
Bench in Sunil Batra v. Administration (supra).
We may also refer here to State of
Maharashtra v. Prabhakar Pandurang Sangzgiri and Anr'(2) where a Constitution
Bench repelled the argument that the Bombay Conditions of Detention order 1951
conferred privileges but not rights on the detenu with the p observation:
"If this argument were to be accepted,
it would mean that the detenu could be starved to death if there was no
condition providing for giving food to the detenu".
The Court has also recognised that the right
to life and liberty guaranteed by Art. 21 of the Constitution includes the
right to a speedy trial. The right to a speedy trial may not be an expressly
guaranteed constitutional right in India, but it is implicit in the 358 right
to a fair trial which has been held to be part of the right to life and liberty
guaranteed by Art.21 of the Constitution. After referring to situations where
an accused person may be seriously jeopardised in the conduct of his defence
with the passage of time, it was observed by one of us in State of Maharashtra
"Such situations, in appropriate cases,
we may readily infer an infringement of the right to life and liberty
guaranteed by Art. 21 of the Constitution.
Denial of a speedy trial may with or without
proof of something more lead to an inevitable inference of prejudice and denial
of justice. It is prejudice to a man to be detained without trial. It is
prejudice to a man to be denied a fair trial. A fair trial implies a speedy
trial." Earlier in Hussainara Khatoon (I) v. Home Secretary(2), it was
observed by Bhagwati. J.:
"If a person is deprived of his liberty
under a- procedure which is not "reasonable, fair or just", such
deprivation would be violative of his fundamental right under Art. 21 and he
would be entitled to enforce such fundamental right and secure his release. Now
obviously procedure prescribed by law for depriving a person of his liberty
cannot be 'reasonable, fair or just' unless that procedure ensures a speedy
trial for determination of the guilt of such person. No procedure which does
not ensure a reasonably quick trial can be regarded as 'reasonable, fair or
just' and it would fall foul of Art. 21. There can, therefore, be no doubt that
speedy trial, and by speedy trial we mean reasonably expeditious trial, is an
integral and essential part of the fundamental right to life and liberty
enshrined in Art. 21." In Hussainara Khatoon (IV) v. Home Secretary(3),
the principle was re-affirmed and Bhagwati, J. added:
"Speedy trial is, as held by us in our
earlier judgment dated February 26, 1979, an essential ingredient of 'reason-
359 able, fair and just' procedure guaranteed by Art. 21 and it is the
constitutional obligation of the State to devise such a procedure as would
ensure speedy trial to the accused." In the same case, it was further
observed that the right to free legal services was implicit in Art. 21 as no
procedure could be said to be reasonable, fair and just which did not provide
for legal service to those who could not secure them themselves. That free
legal services to the poor and the needy was an essential element of any
reasonable, fair and just procedure had already been decided in M:H. Hoskot v. State
So, what do we have now? Arts. 14, 19 and 21
are not mutually exclusive. They sustain, strengthen and nourish each other.
They are available to prisoners as well as free men. Prison walls do not keep
out Fundamental Rights. A person under sentence of death may also claim Fundamental
Rights. The fiat of Art. 21, as explained, is that any procedure which deprives
a person of his life or liberty must be just, fair and reasonable. Just, fair
and reasonable procedure implies a right to free legal services where he cannot
avail them. It implies a right to a speedy trial. It implies humane conditions
of detection, preventive or punitive. 'Procedure established by law' does not
end with the pronouncement of sentence; it includes the carrying out of
sentence. That is as far as we have gone so far. It seems to us but a short
step, but a step in the right direction, to hold that prolonged detention to
await the execution of a sentence of death is an unjust, unfair and
unreasonable procedure and the only way to undo the wrong is to quash the
sentence of death. In the United States of America where the right to a speedy
trial is a constitutionally guaranteed right, the denial of a speedy trial has
been held to entitle an accused person to the dismissal of the indictment or
the vacation of the sentence (vide Strunk v. United States(2).
Analogy of American Law is not permissible,
but interpreting our Constitution sui generis, as we are bound to do, we find
no impediment in holding that the dehumanising factor of prolonged delay in the
execution of a sentence of death has the constitutional implication of
depriving a person of his life in an unjust, unfair and unreasonable way as to
offend the constitutional guarantee that no person shall be deprived of his
life or personal liberty except 360 according to procedure established by law.
The appropriate relief in such a case ii in vacate the sentence of death.
What may be considered prolonged delay so as
to attract the constitutional protection of Art. 21 against the execution of a
sentence of death is a ticklish question. In Ediga Annamma's case, two years
was considered sufficient to justify interference with the sentence of death.
In Bhagwan Baux's case, two and a half years and in Sadhu Singh's case, three
and a half years were taken as sufficient to justify altering the sentence of
death into one of imprisonment for life. The Code of Criminal Procedure
provides that a sentence of death imposed by a court of Session must be
confirmed by the High Court. The practice, to our knowledge, has always been to
give top priority to the hearing of such cases by the High Courts. So, also in
this Court. There are provisions in the Constitution (Arts. 72 and 161) which
invest the President and the Governor with power to suspend, remit or commute a
sentence of death. Making all reasonable allowance for the time necessary for
appeal and considered of reprieve, we think that delay exceeding two years in
the execution of a sentence of death should be considered sufficient to entitle
the person under sentence of death to invoke Art. 21 and demand the quashing of
the sentence of death. We therefore accept the special leave petition, allow
the appeal as also the Writ Petition and quash the sentence of death. In the
place of the sentence of death, we substitute the sentence of imprisonment for
H.L.C. Appeal allowed.