Javed Ahmed Abdul Hamid Pawala Vs.
State of Maharashtra [1984] INSC 208 (9 November 1984)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) VENKATARAMIAH, E.S. (J)
CITATION: 1985 AIR 231 1985 SCR (2) 8 1985
SCC (1) 275 1984 SCALE (2)697
CITATOR INFO :
1985 SC1293 (*) 1986 SC 806 (*) 1988 SC1531
(4) RF 1989 SC 142 (1) RF 1989 SC1335 (1,3,28,30,31,33,34) RF 1989 SC1933 (27)
ACT:
Constitution of India-Article 21-Scope
of-Protection of Art. 21 can be invoked by a person awaiting execution of
sentence of death for commuting death sentence into imprisonment for life if
there is delay exceeding two years in the execution of sentence of death.
Practice & Procedure-A Division Bench of
three Judges cannot purport to overrule decision of a Division Bench of two judges.
HEADNOTE:
The petitioner was convicted and sentenced to
death by the Sessions Judge on 6. 2. 1982 . The High Court confirmed the
sentence of death on 29130. 4.1982. An appeal preferred by the petitioner to
this Court under Art. 136 of the Constitution was dismissed on 20. 4. 1983. The
petition for review was dismissed on 12, 8. 1983. A petition for clemency was
also rejected by the President of India. The petitioner filed the present writ
petition under Art. 32 of the Constitution praying that in view of his tender
age, his reformation in jail and the long lapse of time since the passing of
the sentence of death on him the execution of the sentence of death may be
stopped and the sentence may be commuted to one of imprisonment for life. On
being asked by this Court, the Superintendent of the jail where the petitioner
had been kept reported that so far nothing adverse to the petitioner had came
to the notice of the authority.
Allowing the petition,
HELD; In T. V. Vatheeswaran v. State of Tamil
Nadu, a Division Bench of this Court consisting of one of us and R.B. Misra, J.
held that making all reasonable allowance for the time necessary for appeal and
consideration of reprieve, 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 of the Constitution and demand the quashing
of the sentence of death. Shortly thereafter in Sher Singh v. State of Punjab,
another Division Bench of three learned Judges of this Court presided over by
Chandrachud, C.J while expressing almost complete agreement with most of what
had been said in Vatheeswaran's case dissented from the opinion expressed
therein that a delay of two years and more was sufficient to entitle a person
under sentence of death to invoke Art 21.
Of the Constitution. The reason was, they
said "The fixation of time limit of two years does not seem to us to
accord with the 9 common experience of the time normally consumed by the
litigative process and the proceedings before the executive". They also
said that besides delay there were also other factors to be taken into account
while considering the question whether the sentence of death should be vacated.
Referred Trials and Confirmations Cases are dealt with speedily by High Courts
and are never kept pending longer than two or three months. It is only when
they reach this Court that the delay occurs. But surely, our inability to
devise a procedure to deal expeditiously with such matters of life and death
can be no justification for silencing what the learned Chief Justice has
himself so eloquently described as 'the voice of justice and fairplay' which
demands that '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. [17A-F] T. V. Vatheeswaran v.
Sate of Tamil Nadu, [1983] 2 S. C.C. 68, Furman v. State of Georgia, 408 US
238, Noel Riley v. Attorney-General, 1982 Crl. Law Review 679 and Sher Singh v.
Slate of Punjab, AIR 1983 SC 465, referred to.
Whether a Division Bench of three Judges can
purport to overrule the judgment of a Division Bench of two Judges merely
because there is larger than two. The Court sits in Divisions of two and three
Judges for the sake of convenience and it may be in-appropriate for a Division
Bench of three Judges to purport to overrule the decision of a Division Bench
of two Judges. Vide Young v. Bristol Aeroplane Co. Ltd. It may be otherwise where
a Full Bench or a Constitution Bench does so. [17G-H; 18A] Young v. Bristol
Aeroplane Co. Ltd., 1944 (2) All ER.
293, referred to.
In the instant case, an overall view of all
the circumstances appears to us to entitle the petitioner to invoke the protection
of Art. 21 of the Constitution. We accordingly quash the sentence of death and
substitute in its place the sentence of imprisonment for life. [l8B]
ORIGINAL JURlSDICTION: Writ Petition
(Criminal) No. 972 of 1984.
(Under article 32 of the Constitution of
India) Mrs. K. Hingorani and Mrs Rekha Pandey for the Petitioner.
M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. To be or not to be", is the question which Javed Ahmed
Abdul Hamid Pawala has posed us.
In connection with certain cruel and multiple
murders the petitioner was convicted and sentenced to death by the Learned
Sessions H 10 Judge of Thane, on 6. 2. 1982. The High Court of Maharashtra
confirmed the sentence of death on 29/3()-4-1982. An appeal preferred by the
petitioner to this Court under Art 136 of the Constitution was dismissed by us
on 20. 4. 1983. The petition for review was dismissed on 12. 8. 1983. A
petition for clemency was also rejected by the President of India The
Petitioner has filed the present writ petition under Art. 32 of the
Constitution praying that in view of his tender age, his reformation in jail
and the long lapse of time since the passing of the sentence of death on him,
the execution of the sentence of death may he stopped and the sentence may be
commuted to one of imprisonment for life. In his petition he has frankly
confessed to the dastardly crimes committed by him. He has stated that he now
releases the enormity of what he has done and wants to atone and make good the
injury inflicted upon society by him by striving to serve humanity if given a
chance to do so. Moved by the apparent ring of sincerity in the sentiments
expressed by the petitioner in his petition, one of us (E. S. Venkataramiah,
J.) admitted the petition and later it has been directed by the Court that the
petition should be heard by a Bench consisting of the two of us. On 14. 9. 1984
we called for a report from the Superintendent, Yeravada Central Prison, Pune
to report about the conduct and behavior of the prisoner during the period of
his incarceration. The report of the Superintendent Central Jail is to the
effect that so far nothing adverse to the petitioner has came to the notice of
the authority. The question therefore is what is to be done in the
circumstances ? The petitioner is an young managed about 22 years. He appears
to be genuinely repentant and he now desires to atone for the grievous wrong
that has been done by him. The repentance and the desire appear to be sincere
as far as we are able to judge. The Jail authority has no adverse comment to
make against his conduct. The sentence of death has now been hanging over his
head for two years and nine months.
In T.V. Vatheeswaran v. State of Tamil
Nadu(l), a Division Bench of this court consisting of one of us and R.B. Misra,
J. considered at length the question whether delay in the education of the
sentence of death was sufficient to entitle the person under the sentence of
death to invoke Art. 21 of the Constitution. In (1) [1983] 2 S.C.C. 68.
11 opining that a delay exceeding two years
would so entitle the prisoner, we first observed :- "First, let us get rid
of the cob-webs of prejudice. Sure, the murders were wicked and diabolic.
The appellant and his friend 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 we 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 ? After referring to Ediga Anamma, Lalla Singh, Bhagwan Bux
Singh, Sadhu Singh and Sahai, we proceeded to quota Justice Brennan's
observation in Furman v.State of Georgia(l), where he had said:
"The prospect of pending execution
exacts a frightful toll during the inevitable long wait between the imposition
of sentence and the actual infliction of death." F We then referred to the
minority opinion of Lord Scarman and Lord Brightman in Noel Riley v. Attorney-
General(2)7 where they had said:- "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 punishments
in the English Bill of Rights, has recognised and acknowledged that (1) 408 US
238.
(2) [1982] Crl. Law Review 679.
12 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 case, 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 a 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 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 or 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." We added, "While we
entirely agree with Lord Scarman and Lord Brightman about the dehumanising
effect of pro longed 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 13 is death. Be the cause for the delay, the
time necessary A 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." Thereafter we proceeded to consider the
implications of Art. 21 in the light of Menaka Gandhi, Sunil, Batra, Bachan
Singh, Bhuvan Mohan Patnaik, Pandurang Sangzgiri, Champalal Plmjaji Shah,
Hussainara Khatoon and M.H. Hoskot.We then said:- "So, what do we have now
? Articles 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 Article 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 detention, 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 State 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 [1973] 37 L Ed. 2d S6). 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 14 person
shall be deprived of his life or personal liberty except - according to
procedure established by law. The appropriate relief in such a case is to
vacate the sentence of death." We proceeded to consider what delay could
be considered prolonged enough to attract the Constitutional protection of Art.
21, We thought that making all responsible allowance for the time necessary for
appeal and consideration of reprieve, 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 of the Constitution and demand
the quashing of the sentence of death.
Very shortly after the Court had pronounced
its judgment, in Vatheeswaran's case, in Sher Singll v. State of Punjab1)
another Divison Bench of three learned Judges of this Court presided over by
Chandrachud, C.J. while expressing almost complete agreement with most of what
had been said in Vatheeswaran's case dissented from the opinion expressed by
therein that a delay of two years and more was sufficient to entitle a person
under sentence of death to invoke Art. 21 of the Constitution. The learned
Judges first observed:- "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 P 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 Tradi- (1) AIR 1983 SC 46S.
15 tionally, 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 resjudicata 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 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 justitiae, 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." They then proceeded to agree with our
agreement with the view expressed by Lord Scarman and Lord Brightman. They
said:- "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 Neel Riley 1982 Crl. Law Review 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 16 and physical integrity and health of the individual can render A
the decision to execute the sentence of death an inhuman and degrading
punishment in the circumstances of a given case." After referring to
Robert Johnson's 'Condemned to die, life under sentence of death', they
observed:
"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 Art. 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
Art. 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, Art. 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 Prabhnkar Pandurang Sanzgiri (AIR
1966 SC 424), Bhuvau Mohan Patniak (AIR 1974 SC 2092) and Sunil Batra (AIR 1978
SC,j,167S). It is a logical extension of the selfsame principle that the death
sentence, even if justifiably imposed, cannot be executed if supervening events
make its execution harsh, unjust or unfair. Art. 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," 17 After saying so much, the
learned Judges found it impossible A to agree, with that part of the judgment
in T.V. Vatheesawaran v. State of Tamil Nadu (supra), where it had been said
that delay exceeding two years in executing a sentence of death should be
considered sufficient to entitle the person under sentence of death to invoke
Att. 21 and demand the quashing of the sentence of death. The reason was, they
said "The fixation of 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." They also
said that besides delay there were also other factors to be taken into account
while considering the question whether the sentence of death should be vacated.
The observations of the learned Judges purporting to dissent from the view
taken in T'atheeswaral1's case were made, curiously enough, while admitting
,SherSingh's petition on other grounds. It was perhaps thought desirable and
necessary to express firmly their views on one of the questions raised which
they were not accepting while admitting the petition on other questions lest
further damage be done to the cause of justice by following the wrong rule
thought to have been laid down in Vatheeswaran's case and unworthy people saved
from the gallows. We do not wish to dwell any further on this aspect of the
matter except to point out that as far as we know Referred Trials and
Confirmation Cases are 1 dealt with speedily by High Courts and are never kept
pending longer than two or three months. It is only when they reach this Court
that the delay occurs. But surely, our inability to devise a procedure to deal
expeditiously with such matters of life and death can be no justification for
silencing what the learned Chief Justice has himself so eloquently described as
'the voice of justice and fairplay' which demands that '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. 'Tlle case also raises the further question whether a Division
Bench of three Judges
two judges merely because three is larger
than two. The Court sits in Divisions of two and three judges for the sake of
convenience and it may be in-appropriate for a Division Bench of three judges
to purport to overrule the decision of a Division Bench of two judges. Vide
Young v. Bristol Aeroplane Co. Ltd.(l) It may be otherwise where a full Bench
or a Constitution Bench does so.
18 We do not however desire to embark upon
this question in this case. In the present case we are satisfied that an overall
view of all the circumstances appears to us to entitle the petitioner to invoke
the protection of Art. 21 of the Constitution. We accordingly quash the
sentence of death and substitute in its place the sentence of imprisonment for
life.
H.S.K. Petition allowed.
Back