Sher Singh & Ors Vs. The State Of
Punjab [1983] INSC 27 (24 March 1983)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) TULZAPURKAR, V.D.
VARADARAJAN, A. (J)
CITATION: 1983 AIR 465 1983 SCR (2) 582 1983
SCC (2) 345
CITATOR INFO :
R 1983 SC 585 (3) E 1985 SC 231 (3) D 1988 SC
30 (5) RF 1989 SC 142 (1) APR 1989 SC1335 (1,2,28,29,51,56,66,73) RF 1989
SC1933 (27) R 1989 SC2299 (2) F 1991 SC 345 (11,14,15,18)
ACT:
Constitution of India-Art. 2I-Fair
procedure-Prisoner sentenced to death-Delay in execution of sentence-Prisoner
entitled to invoke jurisdiction under Art. 21 for examining whether it is just
and fair to allow sentence to be executed-Prisoner cannot demand that sentence
of death should be quashed and substituted by sentence of life imprisonment-Prolonged
delay is an important consideration but several other factors must also be
taken into account-No absolute or unqualified rule can be laid down.
HEADNOTE:
The petitioners were convicted under s. 302
read with s. 34 I.P.C. and were sentenced to death on November 26, 1977. The
High Court upheld the conviction and sentence on July 18, 1978. The
petitioners' Special Leave Petition against the judgment of the High Court was
dismissed on March 5, 1979 and the Review Petition against the dismissal of the
Special Leave Petition was also dismissed on March 27, 1981. The petitioners'
successive writ petitions challenging the validity of ss. 302 and 34 I.P.C.
were dismissed on January 20, 1981 and August 24, 1981 respectively. The
present writ petitions were filed on March 2, 1983 on the basis of the decision
in T.V. Vatheeswaran v. State of Tamil Nadu which was rendered on February 16,
1983.
The contention on behalf of the petitioners
was that more than two years had elapsed since they were sentenced to death by
the trial court and therefore they were entitled in terms of the ruling in
vatheeswaran to demand that the said sentence should be quashed and substituted
by the sentence of life imprisonment.
HELD : Prolonged delay in the execution of a
death sentence is unquestionably an important consideration for determining
whether the sentence should be allowed to be executed. But no hard and fast
rule 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"
can be laid down as has been done in Vatheeswaran. [594 E-F] (i) No absolute or
unqualified rule can be laid down that in every case in which there is a long
delay in the execution of a death sentence, the 583 sentence must be
substituted by the sentence of life imprisonment. There are several other
factors which must be taken into account while considering the question as to
whether the death sentence should be vacated. A convict is entitled to pursue
all remedies lawfully open to him and get rid of the sentence of death imposed
upon him and his taking recourse to them to ask for the commutation of his
sentence even after it is finally confirmed by this Court is understandable.
But, it is, at least, relevant to consider whether the delay in the execution
of the death sentence is attributable to the fact that he has resorted to a
series of untenable proceedings which have the effect of defeating the ends of
justice. It is not uncommon that a series of review petitions and writ
petitions are filed in this Court to challenge judgments and orders which have
assumed finality, without any seeming justification. Stay orders are obtained
in those proceedings and then, at the end of it all, comes the argument that
there has been prolonged delay in implementing the judgment or order. The Court
called upon to vacate a death sentence on the ground of delay caused in
executing that sentence must find why the delay was caused and who is
responsible for it. If this is not done, the law laid down by this Court will
become an object of ridicule by permitting a person to defeat it by resorting
to frivolous proceedings in order to delay its implementation. Further, the nature
of the offence, the diverse circumstances attendant upon it, its impact upon
the contemporary society and the question whether the motivation and pattern of
the crime are such as are likely to lead to its repetition if the death
sentence is vacated, re matters which must enter into the verdict as to whether
the sentence should be vacated for the reason that its execution is delayed.
The substitution of the death sentence by a sentence of life imprisonment
cannot follow by the application of the two years' formula as a matter of
"quod erat demonstrandum." [595 D-H; 596-AE] T.V. Vatheeswaran v.
State of Tamil Nadu. [1983] 2 S.C.R. 348 overruled.
(ii) The period of two years purports to have
been fixed in Vatheeswaran after making "all reasonable allowance for the
time necessary for appeal and consideration of reprieve." It is not
possible to agree with this part of the judgment in that case. The fixation of
the time limit of two years does not accord with the common experience of the
time normally consumed by the litigative process and the proceedings before the
executive. A period far exceeding two years is generally taken by the High
Court and this Court together for the disposal of matters involving even the
death sentence. Very often four or five years elapse between the imposition of
death sentence by the Sessions Court and the disposal of the Special Leave
Petition or an Appeal by this Court in that matter. This is apart from the time
which the President or the Governor, as the case may be, takes to consider
petitions filed under Art. 72 or Art. 161 of the Constitution or the time which
the Government takes to dispose of application filed under ss. 432 and 433 of
the Code of Criminal Procedure. [594-F-H; 595-AC] (iii) Piare Dusadh is not an
authority for the proposition that if a certain number of years have passed
since the imposition of a death sentence, 584 that sentence must necessarily be
commuted to life imprisonment. In that case the Federal Court commuted the
sentence of death to sentence of transportation for life for reasons other than
that a long delay had intervened after the death sentence was imposed. In Ediga
Anamma, Piare Dusadh was regarded as a leading case on the point. In the other
judgments of this Court referred to in Vatheeswaran, this Court was hearing
appeals against judgments of High Courts confirming the sentence of death.
However, the Court has not taken the narrow view that the jurisdiction to
interfere with a death sentence can be exercised only in an appeal against the
judgment of conviction and sentence. In very recent times, the sentence of
death has been commuted to life imprisonment by this Court in quite a few cases
for the reason, inter alia, that the prisoner was under the spectre of the
sentence of death for an unduly long time after the final confirmation of that
sentence. [589 B-D-H; 590-A-D] Piare Dusadh, [1944] F.C.R. Vol.6 61; Ediga
Anamma, [1974] 3 S.C.R. 329; Sunil Batra v. Delhi Administration, [1979] 1
S.C.R. 392; Maneka Gandhi [1978] 2 S.C.R. 621;
Bachan Singh, [1980] 2 S.C.C. 684, Hussainara
Khatoon, [1980] 1 S.C.C. 98; Hoskot, [1978] 3 S.C.C. 544; Bhuvan Mohan Patnaik,
[1975] 2 S.C.R. 24; and Prabhakar Pandurang Sangzgiri, [1966] 1 S.C.R. 702
referred to.
(iv) Article 21 is as much relevant at the
stage of execution of the death sentence as it is in the interregnum between
the imposition of that sentence and its execution.
The essence of the matter is that all
procedure, no matter what the stage, must be fair, just and reasonable. It is
well established that a prisoner cannot be tortured or subjected to unfair or
inhuman treatment. It is a logical extension of the self same principle that
the death sentence, even if justifiably imposed, cannot be executed if
supervening events make its execution harsh, unjust or unfair. A prisoner who
has experienced living death for years on end is entitled to invoke the
jurisdiction of this Court for examining the question whether, after all the
agony and torment he has been subjected to, it is just and fair to allow the sentence
of death to be executed. That is the true implication of Art. 21 of the
Constitution. [593 B- G] Bhuvan Mohan Patnaik, [1975] 2 S.C.R. 24; Prabhakar
Pandurang Sangzgiri, [1966] 1 S.C.R. 702; and Sunil Batra v.
Delhi Administration, [1979] 1 S.C.R. 392
referred to.
(v) Traditionally, subsequent events are
taken into account in the area of civil law. There is no reason why they should
not receive due consideration in other jurisdictions, particularly when their
relevance on the implementation or execution of judicial verdicts is
undeniable. Principles analogous to res judicata govern all judicial
proceedings but when new situations emerge, particularly factual, after a
verdict has assumed finality in the course of the hierarchical process, advertence
to those situations is not barred on the ground that a final decision has been
rendered already. That final decision is not a decision on new facts. Courts
are never powerless to do justice, that 585 is to say, to ensure that the
processes of law do not result in undue misery, suffering or hardship. That is
why, even after the final seal of approval is placed upon a sentence of death,
this Court has exercised its power to direct, ex debito justiciae, that though
the sentence was justified when passed, its execution, in the circumstances of
the case, is not justified by reason of the unduly long time which has elapsed
since the confirmation of that sentence by this Court. [590-E-H] In the instant
case, the sentence of death imposed upon the petitioners by the Sessions Court
and which was upheld by the High Court and this Court cannot be vacated merely
for the reason that there has been a long delay in the execution of that
sentence. Counsel for the petitioners have been asked to argue upon the reasons
why, apart from the delay caused in executing the death sentence, it would be
unjust and unfair to execute that sentence at this point of time. The question
will be decided after hearing the parties. [596-G-H; 597-A-B]
2. Petitions filed under Arts. 72 and 161 of
the Constitution and under ss. 432 and 433, Cr. P.C. must be disposed of
expeditiously. A self imposed rule should be followed by the executive
authorities that every such petition shall be disposed of within a period of
three months from the date on which it is received. [597-C]
ORIGINAL JURISDICTION: Writ Petition Nos. 232
& 233 of 1983.
(Under article 32 of the Constitution of
India) M.S. Joshi, N.D. Garg and Rajiv Kumar Garg for the Petitioners.
D.D. Sharma for the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, CJ. An important question arises for consideration in these two
writ petitions. That question is whether a delay exceeding two years in the
execution of a sentence of death must be considered sufficient for setting aside
that sentence. Learned counsel who appears on behalf of the petitioners relies
upon a decision of this Court in T.V. Vatheeswaran v. The State of Tamil
Nadu(1) and contends that since more than two years have passed since the
petitioners were sentenced to death by the Trial Court, they are entitled to
demand that the said sentence should be quashed and substituted by the sentence
of life imprisonment.
The petitioners, Sher Singh and Surjit Singh,
and one Kuldip Singh were convicted under section 302 read with section 34 of
the 586 Penal Code and were sentenced to death by the learned Sessions Judge,
Sangrur, on November 26, 1977. By a judgment dated July 18, 1978 the High Court
of Punjab and Haryana reduced the sentence imposed upon Kuldip Singh to life imprisonment
but upheld the sentence of death imposed upon the petitioners. The High Court
also imposed a sentence of fine of Rs. 5000 on Kuldip Singh and a fine of Rs.
5000 on each of the petitioners. Special Leave Petition (Crl.) No. 1711 of 1978
which was filed by the petitioners against the judgment of the High Court was
dismissed by this Court on March 5, 1979. The petitioners then filed a Writ
Petition in this Court challenging the validity of section 302 of the Penal
Code. That petition was dismissed on January 20, 1981.
Review Petition No. 99 of 1981 filed by the
petitioners against the dismissal of their S.L.P. was dismissed by this Court
on March 27, 1981. The petitioners filed yet another petition under article 32
of the Constitution, this time challenging the validity of section 34 of the
Penal Code.
That petition was dismissed on August 24,
1981. After failing in these seemingly inexhaustible series of proceedings, the
petitioners filed these two writ petitions on March 2, 1983, basing themselves
on the decision rendered by Justice Chinnappa Reddy and Justice R.B. Misra on
February 16, 1983 in Vatheeswaran.
The question which arose for consideration in
Vatheeswaran is formulated by Chinnappa Reddy, J., who spoke for the Court, in
these terms:
"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?"
This question arose on the following facts as stated in the judgment of Brother
Chinnappa Reddy:
(1) The prisoner was rightly sentenced to
death.
(2) He was the 'arch-villain of a villainous
piece' and the brain behind a cruel conspiracy to impersonate Customs officers,
pretend to question unsuspecting visi- 587 tors 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 its architect.
(3) Since January 19, 1975 when the Sessions
Judge pronounced the sentence of death, the prisoner was kept in solitary
confinement contrary to the decision of this Court in Sunil Batra v. Delhi
Administration. (1) Before that, he was a 'prisoner under remand' for two
years.
On these facts, the argument advanced in this
Court on behalf of the prisoner was that taking away his life after keeping him
in jail for ten years, eight of which were spent in illegal solitary
confinement, is a gross violation of the fundamental rights guaranteed by
Article 21 of the Constitution.
In Vatheeswaran, our learned Brethren have
drawn sustenance to their conclusion from one judgment of the Federal Court of
India, five judgments of this Court, one of the Privy Council and one of the
U.S. Supreme Court. As to the meaning and implications of Article 21 of the
Constitution, they have relied upon the decisions of this Court in Sunil
Batra,(1) Maneka Gandhi,(2) Bachan Singh, (3) Hussainara Khatoon (4) and
Hoskot.(5) The judgment in Bhuvan Mohan Patnaik (6) and Prabhakar Pandurang
Sangzgiri (7) have been relied upon to show that prisoners who are under a
sentence of death and detenus are entitled to certain fundamental rights.
In Piare Dusadh, (8) the Federal Court was
considering appeals against the judgments of the High Courts of Allahabad,
Madras, Nagpur and Patna, under the special Criminal Courts Ordinance II of
1942. In Case Nos. XLI and XLII, the High Court of Patna had 588 confirmed the
sentence of death passed on the appellants by the Special Judge. It was urged
before the Federal Court that the death sentence imposed in those cases should
be reduced to transportation for life on account of the time that had elapsed
since the sentences were first pronounced.
The Court observed:
"It is true that death sentences were
imposed in these cases several months ago, that the appellants have been lying
ever since under threat of execution, and that the long delay has been caused
very largely by the time taken in proceedings over legal points in respect of
the constitution of the courts before which they were tried and of the validity
of the sentences themselves.
We do not doubt that this court has power,
where there has been inordinate delay in executing death sentence in cases
which come before it, to allow the appeal in so far as the death sentence is
concerned and substitute a sentence of transportation for life on account of
the time factor alone, however right the death sentence was at the time when it
was originally imposed. But this is a jurisdiction which very closely
entrenches on the powers and duties of the executive in regard to sentences
imposed by courts. It is a jurisdiction which any court should be slow to
exercise. We do not propose ourselves to exercise it in these cases. Except in
Case No. XLVII (in which we are commuting the sentence largely for other
reasons as hereafter appears), the circumstances of the crimes were such that
if the death sentence which was the only sentence that could have been properly
imposed originally, is to be commuted, we feel that it is for the executive to
do so." It was urged before the Federal Court that in England, when cases
in which death sentence has been imposed are allowed to be taken to the House
of Lords on account of some important legal point, the consequential delay in
finally disposing of the case was treated as a ground for the commutation of
the death sentence and that a similar course might well be adopted in India in
cases in which substantial questions of law as to the interpretation of the
Constitution Act had to be considered by the Federal Court.
This argument was rejected on the ground that
these were matters primarily for the consideration of the executive.
589 In Case No. XLVII, which was one of the
cases before the Federal Court, the appellant was convicted by a special Judge
of the offence of murder and was sentenced to death on September 30, 1942. The
Allahabad High Court confirmed the sentence of death but the Federal Court
commuted that sentence to transportation of life. As is evident from the
parenthetical portion of the passage extracted above, this was done
"largely for other reasons", that is to say, for reasons other than
that a long delay had intervened after the death sentence was imposed. The
Federal Court commuted the death sentence on the ground that the sentence of
transportation for life was more appropriate in the circumstances of the case.
They added that the appellant was awaiting the execution of his death sentence
for over a year.
It is thus clear that Piare Dusadh is not an
authority for the proposition that if a certain number of years have passed
since the imposition of a death sentence, that sentence must necessarily be
commuted to life imprisonment.
In Ediga Anamma(1) this Court was hearing an
appeal against the sentence of death imposed upon the appellant.
Finding that the appellant was a young woman
of 24 who was flogged out of her husband's house by the father-in-law, this
Court reduced her sentence to life imprisonment for a variety of factual
reasons peculiar to the case, like her entanglement into a sex net, that she
had a young boy to look after and so on. Speaking for the Court, Krishna Iyer,
J. added:
"What may perhaps be an extrinsic factor
but recognised by the Court as of humane significance in the sentencing context
is the brooding horror of 'hanging' which has been haunting the prisoner in her
condemned cell for over two years. The Sessions Judge pronounced the death
penalty on December 31, 1971, and we are now in February 1974. This prolonged
agony has ameliorative impact according to the rulings of this Court."
Piare Dusadh was regarded by the Court as a leading case on this point. We have
already adverted to the circumstances in which the death sentence was commuted
to transportation for life in that case.
590 In the other cases referred to in
Vatheeswaran, (supra) this Court was hearing appeals against the judgments of
High Courts confirming the sentence of death. In those cases, the sentence of
death was commuted into life imprisonment by this Court by reason of the long
interval which had elapsed either since the imposition of the death sentence or
since the date of the occurrence.
But we must hasten to add that this Court has
not taken the narrow view that the jurisdiction to interfere with a death
sentence can be exercised only in an appeal against the judgment of conviction
and sentence. The question which arises in such appeals is whether the extreme
penalty provided by law is called for in the circumstances of the case. The
question which arises in proceedings such as those before us is whether, even
if the death sentence was the only appropriate sentence to impose in the case
and was therefore imposed, it will be harsh and unjust to execute that sentence
by reason of supervening events. In very recent times, the sentence of death
has been commuted to life imprisonment by this Court in quite a few cases for
the reason, inter alia, that the prisoner was under the specter of the sentence
of death for an unduly long time after the final confirmation of that sentence,
consequent upon the dismissal of the prisoner's Special Leave Petition or
Appeal by this Court. Traditionally, subsequent events are taken into account
in the area of civil law. There is no reason why they should not receive due
consideration in other jurisdictions, particularly when their relevance on the
implementation or execution of judicial verdicts is undeniable. Undoubtedly,
principles analogous to Res- judicator govern all judicial proceedings but when
new situations emerge, particularly factual, after a verdict has assumed
finality in the course of the hierarchical process, advertence to those
situations is not barred on the ground that a final decision has been rendered
already. That final decision is not a decision on new facts. Courts are never
powerless to do justice, that is to say, to ensure that the processes of law do
not result in undue misery, suffering or hardship. That is why, even after the
final seal of approval is placed upon a sentence of death, this Court has
exercised its power to direct, ex debito justiciae, that though the sentence
was justified when passed, its execution, in the circumstances of the case, is
not justified by reason of the unduly long time which has elapsed since the
confirmation of that sentence by this Court. Some of us dealing with this case
have been parties to decisions directing, in appropriate cases, that the death
sentence shall not be executed by reason of supervening circumstances.
591 In Vatheeswaran, the prisoner was under
the sentence of death for over eight years and was in the jail for two years
before that. After the death sentence was pronounced upon him, he was kept in
solitary confinement, contrary to this Court's ruling in Sunil Batra. These
supervening considerations, inter alia, were unquestionably germane to the
decision whether the death sentence should be allowed to be executed. The Court
took them into account and commuted the sentence to life imprisonment.
Like our learned Brethren, we too consider
that the view expressed in this behalf by Lord Scarman and Lord Brightman in
the Privy Council decision of Neol Riley (1) is, with respect, correct. The
majority in that case did not pronounce upon this matter. The minority
expressed the opinion that the jurisprudence of the civilized world has
recognized and acknowledged that prolonged delay in executing a sentence of
death can make the punishment when it comes inhuman and degrading: Sentence of
death is one thing; sentence of death followed by lengthy imprisonment prior to
execution is another. The prolonged 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 can render the
decision to execute the sentence of death an inhuman and degrading punishment
in circumstances of a given case.
Death sentence is constitutionally valid and
permissible within the constraints of the rule in Bachan Singh. This has to be
accepted as the law of the land. We do not, all of us, share the views of every
one of us. And that is natural because, every one of us has his own philosophy
of law and life, moulded and conditioned by his own assessment of the performance
and potentials of law and the garnered experiences of life. But the decisions
rendered by this Court after a full debate have to be accepted without mental
reservations until they are set aside.
The fact that it is permissible to impose the
death sentence in appropriate cases does not, however, lead to the conclusion
that the sentence must be executed in every case in which it is upheld,
regardless of the events which have happened since the imposition or the
upholding of that sentence. The inordinate delay in the execution of the
sentence is one circumstance which has to be taken into account 592 while
deciding whether the death sentence ought to be allowed to be executed in a
given case. In his sociological study called 'Condemned to Die, Life Under
Sentence of Death', Robert Johnson says:
"Death row is barren and uninviting. The
death row inmate must contend with a segregated environment marked by
immobility, reduced stimulation, and the prospect of harassment by staff. There
is also the risk that visits from loved ones will become increasingly rare, for
the man who is "civilly dead" is often abandoned by the living. The
condemned prisoner's ordeal is usually a lonely one and must be met largely
through his own resources. The uncertainties of his case-pending appeals,
unanswered bids for commutation, and possible changes in the law-may aggravate
adjustment problems. A continuing and pressing concern is whether one will join
the substantial minority who obtain a reprieve or will be counted among the to-be-dead.
Uncertainty may make the dilemma of the death
row inmate more complicated than simply choosing between maintaining hope or
surrendering to despair. The condemned can afford neither alternative, but must
nurture both a desire to live and an acceptance of imminent death. As revealed
in the suffering of terminally ill patients, this is an extremely difficult
task, one in which resources afforded by family or those within the
institutional context may prove critical to the person's adjustment. The death
row inmate must achieve equilibrium with few coping supports. In the process,
he must somehow maintain his dignity and integrity" (page 4) "Death
row is a prison within a prison, physically and socially isolated from the
prison community and the outside world. Condemned prisoners live twenty-three
and one-half hours alone in their cells..." (page 47) The author proceeds
to say:
"Some death row inmates, attuned to the
bitter irony of their predicament, characterize their existence as a living
death and themselves as the living dead. They are speaking symbolically, of
course, but their imagery is an appropriate description of the human experience
in a world where life is so obviously ruled by death. It takes 593 into account
the condemned prisoners' massive deprivation of personal autonomy and command
over resources critical to psychological survival; tomblike setting, marked by
indifference to basic human needs and desires; and their enforced isolation
from the living, with the resulting emotional emptiness and death." (page
110) A prisoner who has experienced living death for years on end is therefore
entitled to invoke the jurisdiction of this Court for examining the question
whether, after all the agony and torment he has been subjected to, it is just and
fair to allow the sentence of death to be executed. That is the true
implication of Article 21 of the Constitution and to that extent, we express
our broad and respectful agreement with our learned Brethren in their
visualisation of the meaning of that article. The horizons of Article 21 are
ever widening and the final word on its conspectus shall never have been said.
So long as life lasts, so long shall it be the duty and endeavour of this Court
to give to the provisions of our Constitution a meaning which will prevent
human suffering and degradation. Therefore, Article 21 is as much relevant at
the stage of execution of the death sentence as it is in the interregnum
between the imposition of that sentence and its execution. The essence of the
matter is that all procedure, no matter what the stage, must be fair, just and
reasonable. It is well-established that a prisoner cannot be tortured or
subjected to unfair or inhuman treatment. (See Prabhakar Pandurang Sangzgiri,
Bhuvan Mohan Patnaik and Sunil Batra). It is a logical extension of the
self-same principle that the death sentence, even if justifiably imposed,
cannot be executed if supervening events make its execution harsh, unjust or
unfair, Article 21 stands like a sentinel over human misery, degradation and
oppression. Its voice is the voice of justice and fairplay. That voice can
never be silenced on the ground that the time to heed to its imperatives is
long since passed in the story of a trial. It reverberates through all
stages-the trial, the sentence, the incarceration and finally, the execution of
the sentence.
In cases too numerous to mention, this Court
has released undertrial prisoners who were held in jail for periods longer than
the period to which they could be sentenced, if found guilty: this jurisdiction
relates to pre-trial procedure. In Hussainara Khatoon (supra) and Champalal(1),
speedy trial was held to be an integral part of the 594 right conferred by
Article 21: this jurisdiction relates to procedure during the trial. In
Prabhakar Pandurang Sangzgiri, the Court upheld the right of a detenu, while in
detention, to publish a book of scientific interest called 'Inside the Atom';
in Bhuvan Mohan Patnaik, it was held that prisoners had to be afforded
reasonable human conveniences and that the live-wire mechanism fixed on
prison-walls in pursuance of administrative instructions could not be justified
as reasonable if it violated the fundamental rights of the prisoners; in Sunil
Batra, solitary confinement and bar-fetters were disapproved as normal modes of
securing prisoners. These three cases are illustrative of the Court's
jurisdiction to review prison regulations and to regulate the treatment of
prisoners while in jail. And, last but not the least, as we have stated
already, death sentences have been commuted to life imprisonment by this Court
either while disposing of Special Leave Petitions and Appeals or while dealing
with Writ Petitions filed after the unsuccessful termination of the normal
processes of litigation: this jurisdiction relates to the execution of the
sentence. This then is the vast sweep of Article 21.
What we have said above delineates the broad
area of agreement between ourselves and our learned Brethren who decided
Vatheeswaran. We must now indicate with precision the narrow area wherein we
feel constrained to differ from them and the reasons why. Prolonged delay in
the execution of a death sentence is unquestionably an important consideration
for determining whether the sentence should be allowed to be executed. But, according
to us, no hard and fast rule can be laid down as our learned Brethren have done
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 Article 21 and demand the quashing of the sentence of death".
This period of two years purports to have been fixed in Vatheeswaran after
making "all reasonable allowance for the time necessary for appeal and
consideration of reprieve". With great respect, we find it impossible to
agree with this part of the judgment. One has only to turn to the statistics of
the disposal of cases in High Court and the Supreme Court to appreciate that a
period far exceeding two years is generally taken by those Courts together for the
disposal of matters involving even the death sentence. Very often, four or five
years elapse between the imposition of death sentence by the Sessions Court and
the disposal of the Special Leave Petition or an Appeal by the Supreme Court in
that matter. This is apart from the time which the President or the Governor,
as the case may be, takes to consider petitions filed 595 under Article 72 or
Art. 161 of the Constitution or the time which the Government takes to dispose
of applications filed under sections 432 and 433 of the Code of Criminal
Procedure. It has been the sad experience of this Court that no priority
whatsoever is given by the Government of India to the disposal of petitions
filed to the President under Article 72 of the Constitution. Frequent reminders
are issued by this Court for an expeditious disposal of such petitions but even
then the petitions remain undisposed of for a long time. Seeing that the
petition for reprieve or commutation is not being attended to and no reason is
forthcoming as to why the delay is caused, this Court is driven to commute the
death sentence into life imprisonment out of a sheer sense of helplessness and
frustration.
Therefore, with respect, the fixation of the
time limit of two years does not seem to us to accord with the common
experience of the time normally consumed by the litigative process and the
proceedings before the executive.
Apart from the fact that the rule of two
years runs in the teeth of common experience as regards the time generally
occupied by proceedings in the High Court, the Supreme Court and before the
executive authorities, we are of the opinion that no absolute or unqualified
rule can be laid down that in every case in which there is a long delay in the
execution of a death sentence, the sentence must be substituted by the sentence
of life imprisonment. There are several other factors which must be taken into
account while considering the question as to whether the death sentence should
be vacated. A convict is undoubtedly entitled to pursue all remedies lawfully
open to him to get rid of the sentence of death imposed upon him and indeed,
there is no one, be he blind, lame, starving or suffering from a terminal
illness, who does not want to live. The Vinoba Bhaves, who undertake the "Prayopaveshana"
do not belong to the world of ordinary mortals. Therefore, it is understandable
that a convict sentenced to death will take recourse to every remedy which is
available to him under the law, to ask for the commutation of his sentence,
even after the death sentence is finally confirmed by this Court by dismissing
his Special Leave Petition or Appeal. But, it is, at least relevant to consider
whether the delay in the execution of the death sentence is attributable to the
fact that he has resorted to a series of untenable proceedings which have the
effect of defeating the ends of justice. It is not uncommon that a series of
review petitions and writ petitions are filed in this Court to challenge
judgments and orders which have assumed finality, without any seeming
justification. Stay orders are obtained in those proceedings and then, at the
end 596 of it all, comes the argument that there has been prolonged delay in
implementing the judgment or order. We believe that the Court called upon to
vacate a death sentence on the ground of delay caused in executing that
sentence must find why the delay was caused and who is responsible for it. If
this is not done, the law laid down by this Court will become an object of
ridicule by permitting a person to defeat it by resorting to frivolous
proceedings in order to delay its implementation and then, the rule of two
years will become a handy tool for defeating justice. The death sentence should
not, as far as possible, be imposed. But, in that rare and exceptional class of
cases wherein that sentence is upheld by this Court, the judgment or order of
this Court ought not to be allowed to be defeated by applying any rule of
thumb.
Finally, and that is no less important, the
nature of the offence, the diverse circumstances attendant upon it, its impact
upon the contemporary society and the question whether the motivation and
pattern of the crime are such as are likely to lead to its repetition, if the
death sentence is vacated, are matters which must enter into the verdict as to
whether the sentence should be vacated for the reason that its execution is
delayed. The substitution of the death sentence by a sentence of life
imprisonment cannot follow by the application of the two years' formula as a
matter of "quod erat demonstrandum".
In the case before us, the sentence of death
was imposed upon the petitioners by the learned Sessions Judge, Sangrur, on
November 26, 1977. It was upheld by the High Court on July 18, 1978. This Court
dismissed the Special Leave Petition filed by the petitioners on March 5, 1979.
The matter is pending in this Court since
then in one form or another, by reason of some proceeding or the other. The
last of the writ Petitions filed by the petitioners was dismissed by this Court
on August 24, 1981. We do not know why the sentence imposed upon the
petitioners has not been executed for more than a year and half. The Government
of Punjab must explain that delay. We are of the opinion that, in the instant
case, the sentence of death imposed upon the petitioners by the Sessions Court
and which was upheld by the High Court, and this Court, cannot be vacated
merely for the reason that there has been a long delay in the execution of that
sentence.
On the date when these Writ Petitions came
before us, we asked the learned counsel for the petitioners to argue upon the
597 reasons why, apart from the delay caused in executing the death sentence,
it would be unjust and unfair to execute that sentence at this point of time.
Every case has to be decided upon its own facts and we propose to decide this
case on its facts. After hearing the petitioners' counsel, we will consider the
question whether the interests of justice require that the death sentence
imposed upon the petitioners should not be executed and whether, in the
circumstances of the case, it would be unjust and unfair to execute that
sentence now 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. Several
instances can be cited, to which the record of this Court will bear testimony
in which petitions are pending before the State Governments and the Government
of India for an inexplicably long period. The latest instance is to be found in
Cri. Writ Petition Nos.345-348 of 1983, from which it would appear that
petitions filed under Art. 161 of the Constitution are pending before the
Governor of Jammu & Kashmir for anything between 5 to 8 years. A pernicious
impression seems to be growing that whatever the courts may decide, one can
always turn to the executive for defeating the verdict of the Court by
resorting to delaying tactics. Undoubtedly, the executive has the power, in
appropriate cases, to act under the aforesaid provisions but, if we may remind,
all exercise of power is preconditioned by the duty to be fair and quick.
Delay defeats justice.
On the question as to whether the death
sentence should not be allowed to be executed in this case, we shall pronounce
later after hearing the parties. In the meanwhile, notice will go to the
Government of Punjab.
Order accordingly.
H.L.C.
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