Smt. Triveniben
& Ors Vs. State of Gujarat & Ors [1989] INSC 44 (7 February 1989)
Oza,
G.L. (J) Oza, G.L. (J) Sharma, L.M. (J) Dutt, M.M. (J) Singh, K.N. (J) Shetty,
K.J. (J)
CITATION:
1989 AIR 1335 1989 SCR (1) 509 1989 SCC (1) 678 JT 1989 (1) 314
CITATOR
INFO : R 1989 SC2299 (3) E&F 1991 SC 345 (12,19,20) R 1991 SC1548
(3,5,8,10)
ACT:
Constitution
of India, 1950: Article 32--Death sentence--Undue long delay in execution--When
justifies commutation to life imprisonment--Whether Supreme Court can reopen
the conclusions reached by the court sentencing the prisoner--Earlier judgment
of Court--Whether can be challenged on ground of violation of fundamental
rights--Mercy petitions--Expeditious disposal of--Necessity Art. 20(1)--Death
sentence--Securing convict in prison until execution of sentence----Whether
amounts to double jeopardy.
Art.
21--Person sentenced to death--Inordinate delay in execution of
sentence--Whether amounts to mental torture--Necessity for observance of
procedural fairness emphasised.
Arts.
141-145--Larger Bench of the Court--Whether enti- tled to overrule view of a
smaller Bench.
Arts. 72,
161--Mercy petitions--Expeditious disposal of-Necessity for.
Criminal
Procedure Code, 1973: Sections 413, 4 14 and 354(3)-Delay in execution of death
sentence--Whether can be a ground for commutation to life imprisonment--Time
taken upto final verdict-Whether to be excluded in considering delay in
execution of death sentence--Whether any time limit can be prescribed for
execution of death sentence--Good conduct of prisoner after final
verdict--Whether can be ground for commutation.
Indian
Penal Code, 1860---Sections 120-B, 121, 132, 302, 307 & 396--Death
sentence--Whether constitutionally valid.
HEAD NOTE:
The
accused were convicted under s. 302 I.P.C. and sentenced to death by the trial
court. The High Court con- firmed their conviction and 510 sentence.. This
Court dismissed their special leave peti- tions/appeals and subsequent review
petitions. Their mercy petitions to the President and/ or Governor were also
re- jected. Therefore, they approached this Court by way of Writ Petitions for
setting aside the death sentence and substi- tuting it by a sentence of life
imprisonment on the ground of prolonged delay in the execution. They contended
that the dehumanising factor of prolonged delay with the mental torture in
confinement in jail had rendered the execution unconstitutional.
In
view of the conflicting decisions of this Court in T.V. Vaitheeswaran v. State
of Tamil Nadu, [1983] 2 SCR 348 and Sher Singh
& Ors. v. The State of Punjab, [1983] 2 SCR 582 and observations in Javed
Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8 on the question of delay, the writ
petitions were referred to a five judges Bench.
While
a Bench of two Judges held in Vaitheeswaran's case that two years delay in
execution of the sentence after the judgment of the trial court would entitle
the condemned prisoner to ask for commutation of his sentence of death to
imprisonment for life, a three Judges' Bench held, in Sher Singh's case, that
delay alone is not good enough for commu- tation and two year's rule could not
be laid down in the cases of delay and that the Court in the context of the
nature of the offence and delay, could consider the question of commutation of
death sentence. In Javed's case this Court observed that where the condemned
man had suffered more than two years and nine months and was repenting and
there was nothing adverse against him in the jail records, this period of two
years and nine months with the sentence of death heavily weighing on his mind,
would entitle him for commuta- tion of sentence of death into imprisonment for
life.
The
questions for consideration in these cases were:
(a) whether
prolonged delay in execution of the sentence of death rendered it inexecutable
and entitled the accused to demand the alternate sentence of imprisonment for
life,
(b) what
should be the starting point for computing this delay,
(c) what
were the rights of a condemned prisoner who had been sentenced to death but not
executed, and
(d) what
could be the circumstances which should be considered along with the time that
had been taken before the sentence is executed.
On October 11, 1988 this Court dismissed all the writ
petitions, except Writ Petition No. 1566 of 1985, which was partly allowed and
the sentence of death awarded to the accused was substituted by the sen- 511 tence
of imprisonment. Over-ruling the decision in Vaitheeswarans case that two
years' delay would make the sentence of death in executable, this Court held
that undue long delay in execution of the sentence of death would entitle the
condemned person to approach this Court under Article 32 but this Court would
only examine the nature of delay caused and circumstances ensued after sentence
was finally confirmed by the judicial process and would have no jurisdiction to
reopen the conclusions reached by the Court while finally maintaining the
sentence of death, that this Court, might consider the question of inordinate
delay in the light of all circumstances of the case to decide whether the execu-
tion of the sentence should be carried out or should be altered into
imprisonment for life and that no fixed period of delay would be held to make
the sentence of death inexe- cutable. Reasons for the judgment were to follow.
Giving
the reasons for the Judgment, HELD: Majority: Oza, Murari Mohon Dutt, Singh and
Sharma JJ.
Per Oza,
J:
1.1
The delay which could be considered while consider- ing the question of
commutation of sentence of death into one of life imprisonment could only be
from .the date the judgment by the apex Court is pronounced i.e when the judi- cial
process has come to an end. [528E-F]
1.2
The condemned prisoner knows that the judgment pronounced by the Sessions Court
in the case of capital punishment is not final unless confirmed by the High
Court.
All
the delay upto the final judicial process is taken care of while the judgment
is finally pronounced, and in a number of cases the time that has elapsed from
the date of offence till the final decision, has weighed with the courts and
lesser sentence awarded only on this account. [526E, H; 527A] State of Uttar
Pradesh v. Lalla Singh and others, [1978] 1 SCC 142; Sadhu Singh v. State of
U.P., AIR 1978 SC 1506; State of U.P.v. Sahai, AIR 1981 SC 1442 and Joseph Peter v. State of Goa, Daman
& Diu, [1977] 3 SCR 771, referred to.
Piare Dusadh
and others v. The King Emperor, [1944] Federal Court Reports 61, referred to.
1.3
Practically, in all the High Courts a confirmation case i.e. a 512 case where
the sentence of death is awarded by the Sessions Court and is pending in the
High Court for confirmation in the High Court a time bound programme is
provided in the rules and, except on some rare occasions, the High Court has
disposed of a confirmation case between six months to one year. At the Sessions
level also, the normal procedure of the sessions trial is that it is taken up
day today and it is expected that such a sessions case should be given top
priority and it is expected that such trials must continue day to day till it
is concluded. Even in this Court, al- though there is no specific rule,
normally these matters are given top priority, and ordinarily, it is expected
that these matters will be given top priority and shall be heard and disposed
of as expeditiously as possible. Therefore, as long as the matter is pending in
any Court before any final adjudication, even the person who has been condemned
or sentenced to death has a ray of hope. Therefore, it could not be contended that
he suffers that mental torture which a person suffers when he knows that he is
to be hanged but waits for the Dooms day. [527G-H; 528C-E]
1.4
After the matter is finally decided judicially, it is open to the person to
approach the President or the Governor as the case may be with a mercy
petition. It is no doubt true that sometimes such mercy petition and review
petitions are filed repeatedly causing delay, but a legiti- mate remedy if
available in law, a person is entitled to seek it and it would, therefore, be
proper that if there has been undue and prolonged delay, that alone will be a
matter attracting the jurisdiction of this Court, to consider the question of
execution of the sentence. However, while con- sidering the question of delay
after the final verdict is pronounced, the time spent on petitions for review
and repeated mercy petitions at the instance of convicted person himself shall
not be considered. [528F, G; 529A]
1.5
The only delay which would be material for consider- ation will be the delay in
disposal of the mercy petitions or delays occurring at the instance of the
Executive. [529B]
1.6
When petitions under Art. 72 or 161 are received by the authorities concerned,
it is expected that these peti- tions shall be disposed of expeditiously.
[529C] T.V. Vaitheeswaran v. State of Tamil Nadu, [1983] 2 SCR 348, over-ruled.
Sher
Singh & Others v. The State of Punjab, [1983] 2 SCR 582, affirmed.
513 Javed
Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8, referred to.
2.1 A
judgment of the Court can never be challenged under Art. 14 or 21 and,
therefore, the judgment of the court awarding the sentence of death is not open
to chal- lenge as violating Art. 14 or 21. [531G-H] Naresh Shridhar Mirajkar
and Ors. v. State of Maharash- tra and Anr., [1966] 3 SCR 744 and A.R. Antulay
v. R.S. Nayak and another, [1988] 2 SCC 602, relied on.
2.2
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 judi- cial verdict is pronounced and it is because of this that on the
ground of long or inordinate delay a condemned prisoner could approach this
Court. [532A-B]
2.3 It
will not be open to this Court in exercise of jurisdiction under Art. 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 circum- stances 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. [532B-D]
2.4
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. [532D]
3.1
Before 1955, sentence of death was the rule, the alternative sentence had to be
explained by reasons. There- after, it was left to the discretion of the court
to inflict either of the sentences and ultimately in the 1973 Code normal
sentence is imprisonment for life except that for the special reasons to be
recorded sentence of death could be passed. This indicates a trend against
sentence of death but this coupled with the decisions wherein sentence of death
has been accepted as constitu- 514 tional, show that although there is a shift
from sentence of death to lesser sentence, there is a clear intention of
maintaining this sentence to meet the ends of justice in appropriate cases.
Therefore, in spite of the divergent trends in the various parts of the world
there is a consist- ent thought of maintaining the sentence of death on the
statute book for some offences and in certain circumstances where it may be
thought necessary to award this extreme penalty. It is awarded in the rarest of
rare cases and this is the accepted position of law. [524B-D] Bachan Singh etc.
etc. v. State of Punjab etc. etc., [1983] 1 SCR 145 and Machhi Singh and others
v. State of Punjab, [1983] 3 SCC 470 referred to.
3.2
The circumstances in which the extreme penalty should be inflicted cannot be
enumerated in view of complex situation in society and the possibilities in
which the offence could be committed and the Legislature was, there- fore,
right in leaving it to the discretion of the judicial decision as to what
should be the sentence in particular circumstances of the case. But the
Legislature has put a further rider that when the extreme penalty is inflicted
it is necessary for the court to give special reasons thereof.
[525H;
526A-B]
4. The
prisoner, who is sentenced and kept in jail custody under a warrant under s.
366(2) of the Criminal Procedure Code is neither suffering rigorous
imprisonment nor simple imprisonment. In substance, he is in jail so that he is
kept safe and protected with the purpose that he may be available for execution
of the sentence which has been awarded. Hence this will not amount to double
jeopardy. [53 1E] The life of the condemned prisoner in jail awaiting execution
of sentence must be such which is not like a prisoner suffering the sentence,
and it is essential that he must be kept safe. [531F] Sunil Batra v. Delhi
Administration, [1979] 1 SCR 392 re- ferred to.
Per Jagannatha
Shetty, J (Concurring):
5.
Article 21 demands that any procedure which takes away the life and liberty of
persons must be reasonable, just and fair. This procedural fairness is required
to be observed at every stage and till the last breath of the life. [546C] 515 Maneka
Gandhi v. Union of India, [1978] 1 SCC 248; The State of West Bengal v. Anwar
Ali, [1952] SCR 284; Bachan Singh v. State of Punjab [1980] 2 SCC 684; Mithu v.
State of Punjab, [1983] 2 SCC 277 and Sher Singh v. State of Punjab, [1983] 2
SCC 582, relied on.
6.1
The delay which is sought to be relied upon by the accused consists of two
parts. The first part covers the time taken in the judicial proceedings. It is
the time that the parties have spent for trial, appeal, further appeal and
review. The second part takes into fold the time utilized by the executive in
the exercise of its prerogative clemency. [547H; 548A-B]
6.2
The time taken in the judicial proceedings by way of trial and appeal was for
the benefit of the accused. It was intended to ensure a fair trial to the
accused and to avoid hurry-up justice. The time is spent in the public interest
for proper administration of justice. If there is inordinate delay in disposal
of the case, the trial court while sen- tencing or the appellate court while
disposing of the appeal may consider the delay and the cause thereof along with
other circumstances. The court before sentencing is bound to hear the parties
and take into account every circumstance for and against the accused. If the
court awards death sentence, notwithstanding the delay in disposal of the case,
there cannot be a second look at the sentence, save by way of review. [548F-H]
6.3
There cannot be a second trial on the validity of sentence based on Art. 21.
The execution which is impugned is execution of a judgment and not apart from
judgment. If the judgment with the sentence awarded is valid and binding, it
fails to be executed in accordance with law. Therefore, if the delay in disposal
of the case is not a mitigating circumstance for lesser sentence, it would be
wholly inap- propriate to fail back upon the same delay to impeach the
execution. [548H; 549A-B]
6.4 If
the delay in passing the sentence cannot render the execution unconstitutional,
the delay subsequent thereof cannot also render it unconstitutional- Much less
any fixed period of delay could be held to make the sentence inexe- cutable. It
would be arbitrary to fix any period of limita- tion for execution on the
ground that it would be a denial of fairness in procedure under Article 21.
[549B-C] T.V. Vaitheeswaran v. State of Tamil Nadu, [1983] 2 SCR 348, over-ruled. 516
6.5
The time taken by the executive for disposal of mercy petitions may depend upon
the nature of the case and the scope of enquiry to be made. It may also depend
upon the number of mercy petitions submitted by or on behalf of the accused.
The Court, therefore, cannot prescribe a time limit for disposal of even mercy
petitions. However, Article 21 is relevant at all stages, and the principle
that speedy trial is a part of one's fundamental right to life and liberty is
no less important for disposal of mercy petition. [549E-F] Hussainara Khatoon
v. The State of Bihar, [1979] 3 SCR 169 and 1980 1 SCC 81
and Kadra Pahadiya v. State of Bihar, [1981]
3 SCC 671 and 1983 2 SCC 104 relied on.
6.6 It
has been universally recognised that a condemned person has to suffer a degree
of mental torture even though there is no physical mistreatment and no
primitive torture.
He may
be provided with amenities of ordinary inmates in the prison. But nobody could
succeed in giving him peace of mind. [549G-H] Sunil Batra v. Delhi
Administration, [1978] 4 SCC 494 re- ferred to.
As
between funeral fire and mental worry, it is the latter which is more
devastating, for, funeral fire burns only the dead body while the mental worry
burns the living one. This mental torment may become acute when the judicial
verdict is finally set against the accused. Earlier to it, there was every
reason for him to hope for acquittal. That hope is extinguished after the final
verdict. If, therefore, there is inordinate delay in execution, the condemned pris-
oner is entitled to come to the court requesting to examine whether, it is just
and fair to allow the sentence of death to be executed. [550C]
6.7
The jurisdiction of the Court at this stage, is extremely limited. The Court,
while examining the matter, 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 Art. 226 or under Art. 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. Though the inordinate delay may be a significant factor, but
that by itself cannot render the execution uncon- 517 stitutional. Nor it can
be divorced from the dastardly and diabolical circumstances of the crime
itself. [550D-G] T.V. Vaitheeswaran v. State of Tamil Nadu, [1983] 2 SCR 348 over-ruled.
Sher
Singh v. State of Punjab, [1983] 2 SCR 582 affirmed.
Javed
Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8; Vivian Rodrick v. The State of West Bengal, [1971] 1 SCR 468; State of U.P. v. Paras Nath Singh & Ors., [1973] 3 SCC 647; Bihar v. Pashupati Singh, [1974] 3 SCC 376; State of U.P. v. Suresh, [1981] 3 SCC 635 at 643; State ofU. P. v.
Sahai, [1982] 1 SCC 352; Ram Adhar v. State of U.P., [1979] 3 SCC 774 at 777; State of U.P. v. Lalla Singh [1978] 4 SCC 428; Nachhittar Singh v.
State of Punjab, [1975] 3 SCC 266; Maghar Singh v.
State of Punjab, [1975] 1 SCC 234; Lajar Mashi v.
State of U.P., [1976] 1 SCC 806;
Hussainara
Khatoon v. The State of Bihar, [1979] 3 SCR 169 and 1980 1 SCC 81
and Kadra Pahadiya v. State of Bihar, [1981]
3 SCC 671 and 1983 2 SCC 104 referred to.
6.8 If
the Court wants to have a look at the grievance as to delay then there should
not be any delay either in listing or in disposal of the matter. The person who
com- plaints about the delay in the execution should not be put to further
delay. The matter, therefore, must be expedi- tiously and on top priority
basis, disposed of. [550D-E]
6.9
The contention that the accused should not be exe- cuted if he has since
improved is unavailable, since it seeks to substitute a new procedure which the
Code does not provide for. [551B]
7. The
judicial verdict pronounced by court in relation to a matter cannot be
challenged on the ground that it violates one's fundamental right. The judgment
of a court cannot be said to affect the fundamental rights of citizens.
[534A-B]
Naresh Sridhar Mirajkar, [1963] 3 SCR 744 relied on.
8. It
is now obligatory for the court to state reasons for the sentence awarded for
the offence of murder. The court cannot award death sentence without giving
special reasons and only in exceptional cases and not in the usual run of
murders. There are just six offences carrying death penalty and that too as an
alternate sentence. [543E-F] 518
9. The
criminal law always keeps pace with the develop- ment of society. The
punishment which meets the unanimous approval in one generation, may rank as
the most reprehensi- ble form of cruelty in the next. The representatives of
the people are cognizant of the contemporary social needs. The legislative
amendments brought about from time to time are indicative of their awareness.
The penal law cannot remain isolated and untouched. It will be profoundly
influenced by philosophy prevailing. Time may reach for the representa- tives
of people to consider that death penalty even as an alternate sentence for
murder is uncalled for and unneces- sary. There is nothing in our Constitution
to preclude them from deleting that alternate sentence. [540C; 542H; 543H;
544A] Bachan Singh v. State of Punjab, [1980]
2 SCC 684 and Mithu v. State of Punjab, [1983] 2 SCC 277, referred to.
10.
The practice prevailing over the years had been that a larger bench
straightaway considers the correctness of and, if necessary, overrules the view
of a smaller bench.
This
practice has been held to be the crystallised rule of law in a recent decision
by a special bench of seven judges of this Court. This must be regarded as a
final seal to the controversy, and it is now not open to any one to contend
that a bench of two judges cannot be overruled by a bench of three judges. [536H;
537E] A.R. Antulay v.R.S. Nayak, AIR 2988 SC 1532, followed.
&
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (CRL) Nos. 1566/86,
186/85,192/86,338/88 & 649/87.
(Under
Article 32 of the Constitution of India.) R.K. Jain, Rangarajan, Mrs. Urmila Sirur, Mohd. Naseem, Rakesh K. Khanna,
P.K. Jain, Mukul Mudgal, Sanjay Parikh, B.P. Singh, P. Krishna Rao, B.K.
Prasad, Ms. Malini Poduwal, Lalit Kumar Gupta, Manoj Swarup, Harish Salve, Rajiv
Garg, Rajiv Shakdhar, N.D. Garg, L.K. Gupta (Amicus-curiae), M. Veerappa and Dalveer
Bhandari for the Petitioners.
K. Parasaran,
Attorney General, B. Datta, Additional Solicitor General, V.C. Mahajan. T.U.
Mehta, Anand Prakash, Ms. A Subhashini, A.K. Srivastava, S.K. Bhattacharya, M.N.Shroff,
Ms. Sushma Ralhan. Mahabir Singh, AV. Rangam and R.S. Suri for the Respondents.
519
A.K. Goel, Ajit Pudissery and Mrs. Jayamala Singh for the Interveners.
The
following Judgments of the Court were delivered:
OZA,
J. These matters came up before us because of the conflict in the two decisions
of this Court:(i) T.V. Va- theeswaran v. State of Tamil Nadu, [1983] 2 SCR 348;
Sher Singh & Others v. The State of Punjab, [1983] 2 SCR 582 and observations in the case of Javed Ahmed Abdul Hamid
Pawala v. State of Maharashtra, [1985] 2 SCR 8. In Vatheeswaran's
case, a Bench of two Judges of this Court held that two years delay in
execution of the sentence after the judgment of the trial court will entitle
the condemned prisoner to ask for commutation of his sentence of death to
imprisonment for life. The Court observed that:
"Making
all reasonable allowance for the time necessary for appeal and consideration 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." In Sher Singh's case which
was a decision of a three Judges' Bench 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 commu- tation and two years rule could
not be laid down in cases of delay. It was held that the Court in the context
of the nature of offence and delay could consider the question of commutation
of death sentence. The Court observed:
"Apart
from the fact that the rule of two years run 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 520 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." It was
further observed:
"Finally,
and that is no less important, the nature of the offence, the diverse circum-
stances 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 sen- tence of life imprisonment cannot follow by the application
of the two years' formula, as a matter of "quoderat demonstrandum".
In Javed's
case, it was observed that the condemned man who had suffered more than two
years and nine months and was repenting and there was nothing adverse against
him in the jail records, this period of two years and nine months with the
sentence of death heavily weighing on his mind will entitle him for commutation
of sentence of death into im- prisonment for life. It is because of this
controversy that the matter was referred to a five-Judges' Bench and hence it
is before us.
Learned
counsel for the petitioners at length has gone into the sociological, humane
and other aspects in which the question of sentence of death has been examined
in various decisions and by various authors. It is however not disputed that in
Bachan Singh etc. etc. v. State of Punjab etc. etc., [1983] 1 SCR 145
constitutionality of sentence of death has been upheld by this Court. Learned
counsel has at length referred to the opinion of Hon. Mr. Justice P.N. Bhagwati,
as he then was, which is the minority opinion in Bachan Singh's case. In his
opinion Justice P.N. Bhagwati has conducted a detailed research and has
considered the materi- al about the various aspects of sentence of death.
Learned Attorney General appearing for the respondents also referred to some
portions of the judgment but contended that howsoev- er condemned the sentence
may be but its constitutional validity having been accepted by this Court all
this study about looking at it from various angles is not of much consequence.
He also contended that the opinion has been drifting and the statistics reveal
that 521 at one time there was a trend towards abolition of death sentence and
then a reverse trend started and therefore all this, so far as the present case
is concerned, is not neces- sary. One of the contentions advanced by learned
counsel for the petitioners was that apart from all other considerations it is
clear that this is a sentence which if executed is not reversible and even if
later on something so glaring is detected which will render the ultimate
conclusion to be erroneous the person convicted and executed could not be
brought back to life and it was on this basis that it was contended that
although the law provides for the sentence and it has been held to be
constitutional but still the Courts should be slow in inflicting the sentence
and in fact it was contended that courts are in fact slow in awarding the
sentence. In Bachan Singh's case, it was observed:
"To
sum up, the question whether or not death penalty serves any penological
purpose is a difficult, complex and intractable issue. It has evoked strong,
divergent views. For the purpose of testing the constitutionality of the
impugned provision as to death penalty in Section 320, Penal Code, on the
ground of reasonableness in the light of Articles 19 and 21 of the
Constitution, it is not necessary to express any categorical opinion, one way
or the other, as to which of these two antitheti- cal views, held by the
Abolitionists and Retentionists, is correct. It is sufficient to say that the
very fact that persons of reason, learning and light are rationally and deeply
divided in their opinion on this issue, is a ground among others, for rejecting
the petitioners' argument that retention of the death penalty in the impugned
provisions, is totally devoid of reason and purpose. If, notwithstanding the
view of the Abolitionists to the contrary, a very large segment of people the
world over, including sociologists, legislators, jurists, judges and administra-
tors still firmly believe in the worth and necessity of capital punishment for
the pro- tection of society, if in the perspective of prevailing crime
conditions in India, contem- porary public opinion channalised through the
people's representatives in Parliament, has repeatedly in the last three decades,
rejected all attempts, including the one made recently, to abolish or
specifically restrict the area of death penalty, if death penalty is still a recognised
legal sanction for murder or some types of murder in most of the civilised
countries in the world, if the framers of the Indian Constitution were fully
aware of the existence of death 522 penalty as punishment for murder, under the
Indian Penal Code, if the 35th Report and subsequent Reports of the Law
Commission suggesting retention of death penalty, and recommending revision of
the Criminal Proce- dure Code and the insertion of the new sec- tions 235(2)
and 354(3) in that Code providing for pre-sentence hearing and sentencing proce-
dure on conviction for murder another capital offences were before the
Parliament and pre- sumably considered by it when in 1972-73, it took up
revision of the Code of 1898, and replaced it by the Code of Criminal
Procedure, 1973, it cannot be said that the provisions of death penalty as an
alternative punishment for murder, in section 302, Penal Code, is unrea- sonable
and not in public interest. Therefore, the impugned provision in section 302, vio-
lates neither the letter nor the ethos of Article 19." We are in entire
agreement with the view expressed above.
It is
not necessary to go into the jurisprudential theories of punishment deterrent
or retributive in view of what has been laid down in Bachan Singh's case, with
which we agree but the learned counsel at length submitted that the modern
theorists of jurisprudence have given a go-bye to the retributive theory of
punishment although in some coun- tries it is recognised on a different
principle i.e. to pacify the public anger whereas some theorists have tried to
put both the theories together. So far as the deterrent theory of punishment is
concerned even about that doubts have been expressed as regards the real
deterrent effect of punishment. The absence of determent effect has been at- tributed
to various causes sometimes long delay itself as public memory is always short.
When the convict is utlimate- ly sentenced and executed people have forgotten
the offence that he has committed and on this basis it is sometimes felt that
it has lost its importance. In the present case we are not very much concerned
with all these questions except to some extent the question of delay and its
effect.
It was
also contended that this sentence is a sentence which is irreversible thereby
meaning that if ultimately some mistake in convicting and executing the
sentence is detected after the sentence is executed there is no possibility of
correction. After all the criminal jurisprudence which is in vogue in our
system even otherwise eliminates all possibilities of error as benefit of doubt
at all stages goes in favour of accused. Apart from it there are only a few
offences where sentence of death is provided and there too the manner in which
the 523 law has now been changed ultimately the sentence of death is awarded in
the rarest of rare case. Therefore not much could be made of the possibility of
an error.
The
offences in which sentence of death is provided are under Sections 120-B (in
some cases), 121, 132,302,307 (in some cases) and 396.
The
law as it stood before 1955 the Court was expected to give reasons if it chose
not to pass a sentence of death as normally sentence of death was the rule and
alternative sentence of imprisonment of life could only be given for special
reasons. As Section 367 clause (5) in the Code of Criminal Procedure, 1898
stood:
"If
the accused is convicted for an offence punishable with death, and the Court
sentences him to any punishment other than death, the Court shall in its
judgment state the reasons why the sentence of death was not passed."
Section 367 clause (5) of Cr. P.C. was amended in 1955 and after the amendment
discretion was left to the courts to give either sentence. Section 367 clause
(5) after the amendment reads:
"In
trials by jury, the Court need not write a judgment, but the Court of Sessions
shall record the heads of the charge to the jury:
Provided
that it shall not be necessary to record such heads of the charge in cases
where the charge has been delivered in English and taken down in
shorthand." Thus the legislature dropped that part of the sub-clause which
made it necessary for the Court to state reasons for not awarding sentence of
death. Thus after the amendment the legal position was that it was the
discretion of the Court to award either of the sentences.
In the
Code of Criminal Procedure 1973 Section 354 clause (3) has now been introduced
and it has been provided that in all cases of murder, life imprisonment should
be given unless there are special reasons for giving sentence of death. This
provision Sec. 354 clause (3)reads:
"When
the conviction is for an offence punish- able with 524 death or in the
alternative with imprisonment for life or imprisonment of a term of years, the
judgment shall state the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sen- tence." It is thus
clear that before 1955 sentence of death was the rule, the alternative sentence
had to be explained by rea- sons. Thereafter it was left to the discretion of
the court to inflict either of the sentences and ultimately in the 1973 Code
normal sentence is imprisonment for life except for the special reasons to be
recorded sentence of death could be passed. It is therefore clear that this
indicates a trend against sentence of death but this coupled with the decisions
ultimately wherein sentence of death has been accepted as constitutional go to
show that although there is a shift from sentence of death to lesser sentence
but there is also a clear intention of maintaining this sentence to meet the
ends of justice in appropriate cases. It is there- fore clear that in spite of
the divergent trends in the various parts of the World there is consistent
thought of maintaining the sentence of death on the statute book for some
offences and in certain circumstances where it may be thought necessary to
award this extreme penalty. As stated generally that it is awarded in the
rarest of rare cases and in this accepted position of law, in our opinion, it
is not necessary to go into the academic question about sociologi- cal and
humane aspects of the sentence and detailed examina- tion of the
jurisprudential theories.
It was
also contended though not very seriously that in ultimate analysis out of the
two sentences imprisonment for life or death it has been left to the discretion
of the courts. On the one hand it was suggested that there are no norms laid
down for exercise of discretion but on the other hand it was also admitted that
it is very difficult to lay down any hard and fast rule and apparently both the
sides realised that the attempt that was made by this Court in enumerating some
of the circumstances but could not lay down all possible circumstances in which
the sentence could be justified. In Machhi Singh and others v. State of Punjab, [1983] 3 SCC 470 it was observed
that:
"In
this background the guidelines indicated in Bachan Singh's case, will have to
be culled out and applied to the facts of each individu- al case where the
question of imposing of death sentence arises. The following proposi- tions
emerge from Bachan Singh's case:
(i)
The extreme penalty of death need not be inflicted 525 except in gravest cases
of extreme culpabili- ty.
(ii)
Before opting for the death penalty the circumstances of the 'offender' also
require to be taken into consideration along with the circumstances of the
'crime'.
(iii) Life
imprisonment is the rule and death sentence is an exception. In other words
death sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant circumstances of
the crime, and provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having regard to the
nature and circumstances of the crime and all the relevant circumstances.
(iv) A
balance-sheet of aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circum- stances have to be accorded full weightage
and a just balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised.
In
order to apply these guidelines inter alia the following questions may be asked
and answered:
(a) Is
there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence? (b) Are the circumstances of
the crime such that there is no alternative but to impose death sentence even
after according maximum weightage to the mitigating circum- stances which speak
in favour of the offender? If upon taking an overall global view of all the
circumstances in the light of the afore- said' proposition and taking into
account the answers to the questions posed hereinabove, the circumstances of
the case are such that death sentence is warranted, the court would proceed to
do so." In ultimate analysis it could not be disputed and was not
seriously disputed that the circumstances in which the extreme penalty 526
should be inflicted cannot be enumerated in view of complex situation in
society and the possibilities in which the offence could be committed and in
this context in ultimate analysis it is not doubted that the Legislature
therefore was right in leaving it to the discretion of the judicial decision as
to what should be the sentence in particular circumstances of the case. But the
Legislature has put a further rider that when the extreme penalty is inflicted
it is necessary for the court to give special reasons thereof.
In the
matter before us we are mainly concerned with a) delay in execution of the
sentence of death; b) what should be the starting point for computing this
delay?; c) what are the rights of a condemned prisoner who has been sentenced
to death but not executed? and d) what could be the circum- stances which could
be considered alongwith the time that has been taken before the sentence is
executed.
The
main theme of the arguments on the basis of delay has been the inhuman
suffering which a condemned prisoner suffers waiting to be executed and the
mental torture it amounts to and it is in this background also that the par-
ties argued at length about the starting point which should be considered for
computing delay in execution of the sen- tence. On the one hand according to
the petitioners the mental torture commences when the trial court i.e. the
Sessions Court pronounces the judgment and awards capital punishment. However,
learned counsel also conceded that even the condemned prisoner knows that the
judgment pronounced by the Sessions Court in the case of capital punishment is
not final unless confirmed by the High Court. Mainly therefore it was contended
that the real mental torture commences after the death sentence is confirmed by
the High Court and therefore to consider the question of delay the time should
be computed from the date of the High Court judgment. On the other hand learned
Attorney General contended that even if the judgment of confirmation by the
High Court is passed in which capital punishment is awarded, invariably comes
to this Court and this Court ordinarily grants leave and ap- peals are heard at
length and it was therefore contended that the delay in execution of the
sentence really could be considered after the pronouncement of the final
verdict by this Court and it is only after the final verdict is pro- nounced
that it could be said that the judicial process has concluded. It is no doubt
true that sometimes in these procedures some time is taken and sometimes even
long time is spent. May be for unavoidable circumstances and sometimes even at
the instance of the accused but it was contended and rightly so that all this
delay upto the final judicial process is taken care of while 527 the judgment
is finally pronounced and it could not be doubted that in number of cases
considering the time that has elapsed from the date of the offence till the
final decision has weighed with the courts and lesser sentence awarded only on
this account.
As
early as in 1944, the Federal Court in Piare Dusadh and others v. The King
Emperor, [1944] Federal Court Reports 61 observed:
"It
is true that death sentences were imposed in these cases several months ago,
that the appellants have been lying ever since under the 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 valid- ity of the sentences themselves.
We do not doubt that this court has power, where there has been inordinate
delay in executing death sentences in cases which come before it, to allow the
appeal in so far as death sentence is concerned and subsitute 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 im- posed."
Similarly in State of Uttar Pradesh v. Lalla Singh and others, [1978] 1 SCC
142; Sadhu Singh v. State of U.P., AIR 1978 SC 1506; State of U.P. v. Sahai,
AIR 1981 SC 1442 and Joseph Peter v. State of Goa. Daman & Diu, [1977] 3
SCR 771 while finally deciding the matter the courts have taken notice of the
delay that has occurred in the judicial proc- ess.
It was
contended that Article 21 contemplates not only a fair procedure but also
expeditious procedure and in this context it was contended that observations be
made so that judicial process also is concluded as expeditiously as possible.
Learned Attorney General has filed compilation of rules of various High Courts
and it is not disputed that practically in all the High Courts, a confirmation
case where the sentence of death is awarded by the Sessions Court and the case
is pending in the High Court for confirmation time bound programme is provided
in the rules and it could be said that except on some rare occasion the High
Court has disposed of a confirmation case between six months to one year and
therefore it could not be said that there is no procedure provided for
expeditious disposal of these cases.
At the
Sessions level also the normal procedure of the Sessions trial is that it is
taken up day to day although after coming into force of the Code of 528
Criminal Procedure in 1973 where the number of offences triable by the Sessions
Court have been increased but there is sometimes a slight departure from the
normal rule which is the cause to some extent for some slackness in the Ses- sions
trial but attempt is always made and it is expected that Sessions case where
offences alleged is one which is punishable with death should be given top
priority and normally it Is given top priority and it is expected that the
trials must continue day to day unless it is concluded.
Although
it is well-known that sometimes it is at the in- stance of the advocates
appearing for defence also that this normal rule is given a go-bye but
ordinarily it is expected that these cases must be tried expeditiously and
disposed of.
Even
in this Court although there does not appear to be a specific rule but normally
these matters are given top priority. Although it was contended that this
reference before us--a Bench of five-Judges, was listed for heating after a
long interval of time. We do not know why this reference could not, be listed
except what is generally well-known the difficulty of providing a Bench of five
Judges but ordinarily it is expected that even in this Court the matters where
the capital punishment is involved will be given top priority and shall be
heard of and disposed of as expeditiously as possible but it could not be
doubted that so long as the matter is pending in any Court before final
adjudication even the person who has been condemned or who has been sentenced
to death has a ray of hope. It therefore could not be contended that he suffers
that mental torture which a person suffers when he knows that he is to be
hanged but waits for the Dooms-Day. The delay therefore which could be
considered while considering the question of commutation of sentence of death
into one of life imprisonment could only be from the date the judgment by the
apex court is pronounced i.e. when the judicial process has come to an end.
After
the matter is finally decided judicially, it is open to the person to approach
the President or the Gover- nor, as the case may be, with a mercy petition.
Some-times person or at his instance or at the instance of some of his
relatives, mercy petition and review petitions are filed repeatedly causing
undue delay in execution of the sentence.
It was
therefore contended that when such delay is caused at the instance of the
person himself he shall not be entitled to gain any benefit out of such delay.
It is no doubt true that sometimes such petitions are filed but a legitimate remedy
if available in law, a person is entitled to seek it and it would therefore be
proper that if there has been undue and prolonged delay that alone will be a
matter at- tracting the jurisdiction of this Court, to consider the question of
the execution of the 529 sentence. While considering the question of delay
after the final verdict is pronounced, the time spent on petitions for
review-and repeated mercy petitions at the instance of the convicted person
himself however shall not be considered.
The only
delay which would be material for consideration will be the delays in disposal
of the mercy petitions or delay occurring at the instance of the Executive.
So far
as the scope of the authority of the President and the Governor while
exercising jurisdiction under Article 72 and Article 16 1 are concerned the
question is not at all relevant so far as the case in hand is concerned. But it
must be observed 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 expedi- tiously.
It was
also contended that when capital punishment is awarded the sentence awarded is
only sentence of death but not sentence of death plus imprisonment and
therefore if a condemned prisoner has to live in jail for long in substance it
amounts to punishment which is sentence of death and imprisonment for some time
and this according to the learned counsel will amount to double jeopardy which
is contrary to Article 20 and the imprisonment cannot be justified in law.
Section
366 of the Code of Criminal Procedure provides:
"366.
Sentence of death to be submitted by Court of Session for confirmation--(1)
When the Court of Session passes a sentence of death, the proceedings shall be
submitted to the High Court, and the sentence shall not be executed unless it
is confirmed by the High Court.
(2)
The Court passing the sentence shall commit the convicted person to jail
custody under a warrant." This no doubt authorises the Court of Sessions
to commit a person sentenced to death to jail custody under a warrant.
But
this Section does not contemplate how long he has to be in jail. Clause (1) of
Section 366 provides that when the Court of Sessions passes a sentence of death
the proceedings shall be submitted to the High Court and the sentence shall not
be executed unless it is confirmed by the High Court. It is therefore apparent
that sub-clause (2) provided for committing the convicted person to jail
awaiting the confir- mation of the sentence by the High Court. It is also clear
that when a person is committed to jail awaiting the execu- tion of the
sentence of death, it is not imprisonment but the prisoner has to be kept
secured till the 530 sentence awarded by the court is executed and it appears
that it is with that purpose in view that sub-clause (2) of Section 366 simply
provided for committing the convicted person to jail custody under a warrant.
The
question about solitary confinement or keeping the condemned prisoner alone
under strict guard as provided in various jail manuals was considered by this
Court in Sunil Batra v. Delhi Administration, [1979] 1 SCR 392 and consid- ering
the question of solitary confinment it was observed:
"In
our opinion sub-s. (2) of S. 30 does not empower the jail authorities in the
garb of confining a prisoner under sentence of death, in a cell apart from all
other prisoners, to impose solitary confinement on him. Even jail discipline
inhibits solitary confinment as a measure of jail punishment. It completely
negatives any suggestion that because a pris- oner is under sentence of death
therefore and by reason of that consideration alone, the jail authorities can
impose upon him addition- al and separate punishment of solitary con- finement.
They have no power to add to the punishment imposed by the Court which addi- tional
punishment could have been imposed by the Court itself but has in fact been not
so imposed. Upon a true construction, sub-s. (2) S.30 does not empower a prison
authority to impose solitary confinment upon a prisoner under sentence of
death." In the same judgment, it was further observed:
"What
then is the nature of confinement of a prisoner who is awarded capital sentence
by the Sessions Judge and no other punishment from the time of sentence till
the sentence becomes automatically executable? Section 366(2) of the Cr.P.C.
enable the Court to commit the convicted person who is awarded capital
punishment to jail custody under a warrant. It is implicit in the warrant that
the prisoner is neither awarded simple nor rigorous imprisonment. The purpose
behind enacting sub-s. (2) of S.366 is to make avail- able the prisoner when
the sentence is re- quired to be executed. He is to be kept in jail custody.
But this custody is something different from custody of a convict suffering
simple or rigorous imprisonment. He is being kept in jail custody for making
him available for execution of the sent- 531 ence as and when that situation
arises. After the sentence becomes executable he may be kept in cell apart from
other prisoners with a day and night watch. But even here, unless special
circumstances exist, he must be within the sight and sound of other prisoners
and be able to take food in their company.
If the
prisoner under sentence of death is held in jail custody, punitive deten- tion
cannot be imposed upon him by jail au- thorities except for prison offences.
When a prisoner is committed under a warrant for jail custody under s. 366(2)
Cr. P.C. and if he is detained in solitary confinement which is a punishment
prescribed by s. 73 IPC, it will amount to imposing punishment for the same
offence more than once which would be viola- tive of Article 20(2). But as the
prisoner is not to be kept in solitary confinement and the custody in which he
is to be kept under s.
30(2)
as interpreted by us would preclude detention in solitary confinement, there is
no chance of imposing second punishment upon him and therefore, S. 30(2) is not
violative of Article 20." It is therefore clear that the prisoner who is
sentenced to death and is kept in jail custody under a warrant under Section
366(2) he is neither serving rigorous imprisonment nor simple imprisonment. In
substance he is in jail so that he is kept safe and protected with the purpose
that he may be available for execution of the sentence which has been awarded
and in this view the aspect of solitary confinement has already been dealt with
in the above noted case but it must be said that the life of the condemned
prisoner in jail awaiting execution of sentence must be such which is not like
a prisoner suffering the sentence but it is also essen- tial that he must be
kept safe as the purpose of the jail custody is to make him available for
execution after the sentence is finally confirmed.
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 chal- lenge as violating Article 14 or Article 21 as
has been laid down by this Court in Naresh Shridhar Mirajkar and Ors. v. State
of Maharashtra and Anr., [1966] 3 SCR 744 and also in A.R. Antulay v.R.S. Nayak
and 532 another, [1988] 2 SCC 602 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
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 circum- stances 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 circum- stances 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.
So far
as our conclusions are concerned we had delivered our Order on October 11, 1988
and we had reserved the rea- sons to be given later. Accordingly in the light
of the discussions above our conclusion is as recorded in our Order dated
October 11, 1988, reproduced below:
"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 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 inordi- nate 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's case cannot be said to lay
down the correct law and therefore to that extent stands overruled." 533
K. JAGANNATHA SHETTY, J- In Bachan Singh v. State of punlab, [1980] 2 SCC 684,
this Court pronounced that the provision of death penalty as an alternative
punishment for murder, under sec.302 IPC is valid and constitutional.
Sarkaria,
J. who spoke for the majority view held that the provisions relating to
imposition of death sentence and the procedure prescribed thereof would ensure
fairness and reasonableness within the scope of Article 21. It was also
observed that by no stretch of imagination it can be said that death penalty
under sec. 302 either per se or because of execution by hanging constitutes an
unreasonable, cruel or unusual punishment- Nor the mode of its execution has a
degrading punishment which would defile the "dignity of the individual'
within the preamble to the Constitution. The learned Judge, however, cautioned
(at 751):
"A
real and abiding concern for the dignity of human life postulates resistance to
taking a life through law's instrumentali- ty. That ought not to be done save
in the rarest of rare cases when the alternative option is unquestionable
foreclosed." (Empha- sis supplied) Bachan Singh case has thus narrowly
tailored the sen- tencing discretion of courts as to death sentence. Death
sentence cannot be given if there is any mitigating circum- stance in favour of
the accused. All circumstances of the case should be aggravating. It is in the
gravest of grave crimes or in the rarest of rare cases, the death sentence may
be awarded. There is no offence in the penal code carry- ing mandatory death penalty.
Section 303 IPC carrying the mandatory punishment has been declared
unconstitutional in Mithu v. State of Punjab, [1983] 2 SCC 277. So much so, the
death sentence is now awarded only in miniscule number of cases.
All
the accused in these cases belong to that limited and exceptional category. The
trial court convicted them under sec. 302 IPC and sentenced them to death. The
High Court confirmed their conviction and sentence. This Court dismissed their
special leave petitions or appeals and subsequent review petitions. Their mercy
petitions to the President and/or the Governor were also rejected. They have
now moved writ petitions under Article 32 of the Constitu- tion. They are not
seeking to overturn the death sentence on the ground that the Court has
illegally inflicted it. Obvi- ously, that they can not do. The judgment of the
court has become final. Under Article 141, it shall be binding on all Courts.
Under Article 142, it shall be enforceable through- out the territory of India.
Under Article 144 all authori- ties, 534 civil and judicial, in the territory
of India shall act in aid of this Court. The judicial verdict pronounced by
court in relation to a matter cannot be challenged on the ground that it
violates one's fundamental right. The judgment of a court cannot be said to
affect the fundamental rights of citizens (See Naresh Sridhar Mirajkar's case,
1963 (3) SCR 744).
The
petitioners, however, contend that this Court must set aside the death penalty
and substitute a sentence of life imprisonment in view of the prolonged delay
in the execution. The dehumanising factor prolonged delay with the mental
torture in solitary confinement in jail, according to them, has rendered the
execution unconstitutional under Article 21. There are also some other subsidiary
contentions to which I will presently refer.
We
have earlier dismissed all but one petition giving our unanimous conclusion
stating therein that we would give our reasons later. Here are my own reasons
in support of that conclusion:
The
question whether prolonged delay renders death sentence inexecutable and
entitles the accused to demand the alternate sentence of life imprisonment has
arisen amid the diversity of judicial decisions in
(i)
T.V. Vaitheeswaran v. State of Tamil Nadu,
[1983] 2 SCR 348;
(ii) Sher
Singh v. State of Punjab, [1983] 2 SCR 582; and
(iii) Javed
Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8.
Vaitheeswarn
case was decided by a two Judge Bench, where Chinnappa Reddy, J. said (at 359):
"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 depriv-
ing a person of his life in an unjust, unfair and unreasonable way as to offend
the consti- tutional guarantee that no 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."
There then the learned Judge said (at 360):
"Making
all reasonable allowance for the time necessary for appeal and considera- tion
of reprieve, we think that delay exceed- ing two years in the execution of a
sentence of death should be considered sufficient to entitle the person 535
under sentence of death to invoke Article 21 and demand the quashing of the
sentence of death." Sher Singh case was decided by a three Judge Bench.
Chandrachud,
CJ., who spoke for the Bench while disagreeing with above view in Vaitheeswaran,
said (at 595):
"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." Then followed the decision in Javed Ahmad case. There Chinnappa
Reddy, J. raised a question whether a three Judge Bench would overrule the
decision of a two Judge Bench merely because three is larger than two? The
learned Judge said:
"The
court sits in division of two and three Judges for the sake of convenience and
it may be inappropriate for a Division Bench of three Judges to purport to
over-rule the decision of a Division Bench of two Judges. Vide Young v. Bristol
Aeroplane Co. Ltd. It may be otherwise where a full Bench does so. 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 protec- tion of Article 21 of the
Constitution. We accordingly quash the sentence of death and substitute in its
place the sentence of im- prisonment for life." The question posed in Javed
Ahmad case relates to the practice and procedure of this Court. It presents
little problem and could be conveniently disposed of without much controversy.
At the time of flaming the Constitution, Mr. B.N. Rau, after his return from United States reported to the President of the
Constitution Assembly as follows:
"Again
Justice, Frankfurter was very emphatic that any jurisdiction, exercisable by
the Supreme Court, should be exercised by the full Court. His view is that the
highest Court of appeal in the land should not sit in divi- sions. Every Judge,
except of course such judges as may be disqualified by personal interest or
otherwise from hearing 536 particular cases, should share the responsi- bility
for every decision of the Court." (The Framing of India's Constitution
Vol. III by S. Shiva Rao p. 219).
This
was a very good suggestion. But unfortunately that suggestion was not accepted
and the principle which was dear to Justice Frankfurter was not incorporated in
out Constitu- tion. The result iS that each Judge does not share the
responsibility for every decision of this Court.
For a
proper working arrangement in the Court, we have framed Rules under Article 145
of the Constitution confer- ring power on the Chief Justice to constitute
benches for disposal of cases. Order VII Rule (1) of the Supreme Court Rules
1966 provides that every cause, appeal or matter shall be heard by a Bench
consisting of not less than two judges nominated by the Chief Justice. But this
rule is subject to the requirement under Article 145(3) of the Constitution.
Article
145(3) requires a minimum number of five judges for deciding any case involving
substantial question of law as to interpretation of the Constitution. In any
event, the Supreme Court has to sit in benches with judges distributed as the
Chief Justice desires:
In
this context, Order VII Rule 2 of the Supreme Court Rules also needs to be
noted. It provides:
"Where
in the course of the hearing of any cause, appeal or other proceeding, the
bench considers that the matter should be dealt with by a larger bench, it
shall refer the matter to the Chief Justice, who shall thereupon constitute
such a bench for the hearing of it." This is undoubtedly a salutory Rule,
but it appears to have only a limited operation. It apparently governs the
procedure of a smaller bench when it disagrees with the decision of a larger
bench. The bench in the course of hearing of any matter considers that the
matter should be dealt with by a larger bench, it shall refer the matter to the
Chief Justice. The Chief Justice shall then consitute a larger bench for
disposal of the matter. This exercise seems to be unnecessary when a larger
bench considers that a decision of a smaller bench is incorrect unless a constitu-
tional question arises. The practice over the years has been that a larger
bench straightaway considers the correctness of and if necessary overrules the
view of a smaller bench.
This
practice has been held to be a crystallised rule of law in a recent decision by
a 537 special bench of seven learned judges. In A.R. Antulay v.R.S. Nayak, AIR
1988 SC 1531, Sabyasachi Mukharji, J., speaking for the majority said:
"The
principle that the size of the bench whether it is comprised of two or three or
more judges--does not matter, was enunciat- ed in Young v. Bristol Aeroplace
Ltd. (supra) and followed by Justice Chinnappa Reddy in Javed Ahmad A bdul Hamid
Pawla v. State of Maharashtra, [1985] 2 SCR 8 where it has been held that a Division
Bench of two judges, has not been followed by our courts.
XXXX XXXX
XXXX XXXX XXXX "The law laid down by this Court is some what different.
There is a hierarchy within the court itself here where larger benches over-
rule smaller benches. See Mattulal v. Radhey Lal, [1975] 1 SCR 127: AIR 1974 SC
1596; Union of India v. K.S. Subramanian [1977] 1 SCR 87 at 92: AIR 1976 SC
2433 at 2437 and State of U.P.v. Ram Chandra Trivedi, [1977] 1 SCR 462 at 473:
AIR 1976 SC 2547 at 2555. This is the practice followed by this Court and now
in is a crystallised rule of law." The answer to the question posed in Javed
Ahmad case thus stands concluded and it is now not open to any one to contend
that a bench of two judges cannot be overruled by a bench of three judges. We
must regard this as a final seal to the controversy.
Before
grappling with the crucial issue that has been raised in these petitions, it
would be convenient to dispose of what may be regarded as peripheral
submissions. Mr. R.K. Jain, learned counsel who led the arguments on behalf of
the petitioners referred to us in detail the consideration of justice, morality
and usefulness of capital punishment. The counsel also referred to us the
opinion expressed by eminent persons like Shri Arvindo (Tales of Prison Life)
with regard to torment in the prison life. He also invited our attention to the
dissenting opinion of Bhagwati, J., in Bachan Singh where learned Judge
observed that the execution "serves no social purpose." The learned
counsel made an impassioned appeal to save the life of these condemned persons
by sub- stituting life imprisonment on the ground of inordinate delay in
execution. I can really appreciate the compassion- ate feeling with which the
counsel made his submission. The "self" in 538 him came out with
every word he uttered. He seems to belong to a faith where 'non-violence' to
every life is a must. Not that we are different underneath the rotes. As said
by Justice Brennan, white dealing with his opinion in Furman v. Georgia. (408 U.S. 238) "I am not,
that we are each not, a human being with personal views and moral sensioilties
and religious scruples. But it is to say that above all, 1 am a Judge". (The
Oliver wendell Homes Lecture, delivered in September 5, 1986). We are
flesh-and-blood mortals with normal human traits. Indeed, like all others, we
too have some inborn aversions and acquired attractions. But it is not for us
while presiding over courts to decide what pun- ishment or philosophy is good
for our people. While examin- ing constitutional questions, we must never
forget Mar- shall's mighty phrase "that it is a constitution that we are
expounding". We are oath bound to protect the Constitution.
We are
duty bound to safeguard the life and liberties of persons. We must enforce the
constitutional commands, no matter what the problem. In other issues of
constitutional considerations, we must understand the aspirations and
convictions of men and women of our time. And we should not be swayed by our
own convictions. We must never allow our individuality t0 overshadow or
supersede the philosophy of the Constitution.
These
are various philosophical ideologies and underpin- nings about the purposes of
punishment. It includes among others deterfence, retribution, protecting
persons, punish- ing guilty and acquitting the innocent. Among these objec- tives
deterfence and retribution are prominent. Retribution is often confused with
revenge, but there are distinct differences. Retribution embodies the concept
that an of- fender should receive what he rightfully deserves. Deter- fence has
a two fold object. The first object relates to specific deterrence. It will
deter the individual from committing the same or other offences in the future.
The second object is as to general deterrence. It will convince or deter others
that "crime does not pay") (See Crime and Punishment' by Harry E.
Allen & Ors. at 735).
The
Law Commission of India summarised these aspects as to the capital sentence
(35th report para 265( 18)):
"The
fact remains however, that whenever there is a serious crime. the society feels
a sense of disapprobation. If there is any element of retribution in the law,
as administered now, it is not the instinct of the man of jungle but rather a
refined evolu- tion of that instinct the feeling prevails in the public is a
fact of which notice is to be taken. The law 539 does not encourage it, or
exploit it for any undesirable ends. Rather, by reserving the death penalty for
murder, and thus visiting this gravest crime with the gravest punishment the
law helps the element of retribution merge into the element of
deterrence." Sarkaria, J., after referring to this report speaking for the
majority in Bachan Singh, [19801 2 SCC 684 at 721 recognises:
"Retribution
and deterrence are not two divergent ends of capital punishment. They are
convergent goals which ultimately merge into one." The punishments are
provided in order to deter crimes. The punishments are imposed to make the
threat credible. Threats and imposition of punishments are obviously necessary
to deter crimes. As a venerated British Historian, Arthur Bryant writes
"The sole justification for the death penalty is not to punish murderers
but to prevent murder." Professor Earnest Van Den Haag states:
"The
murderer learns through his punishment that his fellow men have found him
unworthy of living, that because he has mur- dered, he is being expelled from
the community of the living. This degradation is self-in- flicted. By
murdering, the murderer has so dehumanised himself that he cannot remain among
the living. The social recognition of his self-degradation is the punitive
essence of execution." (See Harward Law Review: 1986 Vol. 99 p. 1699).
Of
course, one cannot have any empirical data to prove that capital punishment can
be deterrent greater than life imprisonment. It may be that most killers as the
Professor Jack Greenberg states "do not engage in anything like a
cost-benefit analysis. They are impulsive and they kill impulsively." The
paradigm of this kind of murderers cannot be properly accounted for. However,
many classic experiments on the effects of corporal punishments on dogs,
monkeys, pigeons and other animals have been conducted in psychology
laboratories. Graeme Newman in his book "Just and Painful" (at 127)
refers to such experiments. The learned author states that corporal punishment
works and it has been so successful that some animals have starved themselves
to death rather than eat the forbidden food. This position with the human
beings is said to be not different. Indeed, it cannot be different as we could
see from day to day life. As between life and 540 death one lives life. It is
the love of life with sensuous joy of companionship that moves the race and not
so much the ideals. One views the death with trepidation. In fact, every living
being dreads death and it cannot be an exception with those on death row. They
like all others want to live and live as long as they can. Because, the life
has its own attraction, no matter in what form and condition. The death has no
such attraction and cannot have any, since it is the most mysterious of all in
this world.
The
criminal law always keeps pace with the development of society. It reflects as
Chief Justice Warren said: "the evolving standards of decency that mark
the progress of a maturing society". (Trop.. v. Dulles, 356 U.S. 86, 101
(1958). We have much to learn from history of every country.
The
punishment which meets the unanimous approval in one generation, may rank as
the most reprehensible form of cruelty in the next. Take for instance, the
punishment of whipping. A search of historical records of 16th century England
shows that men and women were whipped unmercifully for trivial offences as
peddling, being drunk on a Sunday, and participating in a riot.
Many
other instances of ferocious whippings of men and women, both for political and
other offences, besprinkle and blacken English historical records. Rarely did
any shred of excuse for human frailty seem to enter into the souls of those
sitting in judgment. In the days of Charles the Sec- ond, however, the Duke of
York did interpose in one such case--he saved Lady Sophia Lindsay from being
publicly whipped through the streets of Edinburgh for the crime of assisting at
the escape of the Earl of Argyle, her own father-in-law.
In the
early eighteen hundreds the Australian penal settlements were the scene of
floggings of so severe a nature as to rival, for sheer savagery, the worst that
were inflicted in England during the sixteenth century, or in the southern
State of America during the days of slavery. In the United States of America
whipping was a favorite seven- teenth-century punishment for various offences,
and both male and female culprits came under the lash. Of all the civilized,
nations, Russia may be considered to be the one which not only used the whip
unmercifully, but also as the nation which continued to use it longer by far
and for a greater variety of crimes than did any other. Next to Rus- sia, for
sheer love of whipping, comes China, and little less formidable than the
Russian known is the Chinese rod of split bamboo. The sharp edges of the bamboo
cut into the flesh, inflicting terrible lacera- 541 tions. Little wonder that
deaths, as a result of these floggings, have been frequent, and that those who
escape this fate are often so terribly mutilated that they remain crippled for
the rest of their lives (The History of corpo- ral Punishment--by G.R. Scott
(1948) pages 39 to 56).
Take
the history of punishment of death in England. In 1810 Sir Samuel Romilly who
asked the Parliament to abolish the death penalty for some of crimes said
"there is probably no other country in the world in which so many and so
great a variety of human actions are punishable with loss of life as in
England". (A History of English Criminal Law By L. Radzinowicz V(1) p(1).
The
beginning of the nineteenth century was a period of indiscriminate imposition
of capital punishment in England for numerous widely differing offences. There
were two hundred or more such offences. There were several legisla- tions
providing punishment of death in the reign of George IV. All felonies except
petty larceny and mayhem were theo- retically punishable with death. From 1827
to 1841 several legislations were passed abolishing the punishment of death in
a variety of cases. Burning continued till 1790 to be the punishment inflicted
on women for treason, high or petty.
(Which
latter included not only the murder by a wife of her husband, and the murder of
a master or mistress by a servant but also several offences against the coin).
Burning in such cases was abolished by 30 Geo, 3, c. 48. In practice, women
were strangled before they were burnt; this, however, de- pended on the
executioner. In one notorious case a woman was actually burnt alive for
murdering her husband, the execu- tioner being afraid to strangle her because
he was caught by the fire. In the reign of George II, an act was passed which
was intended to make the punishment for murder more severe than the punishment
for other capital crimes. This was 25 Geo. 2, c. 37, which provided that a
person convicted of murder should be executed on the next day but one after his
sentence (unless he was tried on a Friday, in which case he was to be hanged on
the Monday). He was to be fed on bread and water in the interval and his body,
after death, was either to be dissected or to be hung in chains. The judge,
however, had power to respite or to remit these special severities. Under this
act murderers were usually anatomized, but sometimes gibbeted. By the 2 & 3
Will 4, c. 7 s. 16 (for the regulation of schools of anatomy), it was enact- ed
that the bodies of murderers should no longer be anatomized, but that the
sentence should direct that they should either be hung in chains or a buried in
the prison. Several persons were gibbeted under this act.
542
These provisions distinguish English law in a marked manner from the
continental laws down to the end of the last cen- tury. In most parts of the
continent breaking on the wheel, burning in some cases quartering alive and
tearing with red-hot pincers, were in use, as well as simpler forms of death. (History
of the Criminal Law of England by Stephen Ch. XIII p. 477-478).
Through
out the reign of Henry the Eighth, there were no fewer than two thousand
executions a year. As the stress on the value of property increased, the net
was widened. Not alone murderers and traitors; but robbers, coiners, heretics
and witches were sent to their death. The shooting of a rabbit; the forgery of
a birth certificate; the theft of a pocket-handkerchief; the adoption of a
disguise; the damag- ing of a public property were also included in the list of
death sentence. In 1814 a man was hanged at Chelmsford for cutting down a
cherry tree.
The
public hangings in England continued until well into the nineteenth century.
There were public executions with a large number of people watching. On January
22, 1829, Willi- an Burke was hanged at Edinburgh, and the crowd was great
beyond all former precedent. The last person to be hanged publicly in England
was Michael Marett, who was executed at Newgate on May 26, 1868. As time went
past, the list of death sentence crimes was rapidly reduced and in 1950, it was
confined for four crimes only, to wit; (1) murder, (2) treason, (3) piracy with
violence, and (4) setting fire to arsenals and dockyards. Later this was also
abolished. (See.
G.R.
Scott, The History of Capital Punishment, 38-66 (1950).
What
happened in the United States? It will be noticed that in the United States,
the accused has a constitutional right to be tried by a Jury, as provided under
6th Amend- ment. The accused has a right not to be subjected to "cruel and
unusual punishment" as mandated under 8th Amendment. In Furman, some
Judges took the view that death sentence was unacceptable to the evolving
standards of decency of the American people. But the American people rejected
that view.
Since
then 35 States have re-enacted laws providing for the death sentence for murder
of suitably altering the provi- sions to comply with Furman.
What
do we have here? The representatives of our people are cognizant of the
contemporary social needs. The legisla- tive amendments brought about from time
to time are indica- tive of their awareness. Sub-sec. (5) of sec. 367 of the
Code of the Criminal Procedure, 543 1898 as it stood prior to its amendment by
Act 25 of 1955 provided:
"If
the accused is convicted of an offence punishable with death, and the court
sentences to any punishment other than death, the court shall in its judgment
state the reasons why sentence of death was not passed." This provision
laid down that if an accused was convict- ed of an offence punishable with
death, the imposition of death sentence was the rule and the awarding of a
lesser sentence was an exception. The court had to state the rea- sons for not
passing the sentence of death. There was a change by the amending Act 26 of
1955 which came into force with effect from January 1, 1956. The above
sub-section was deleted and it was left to the discretion of the court in each
case to pass a sentence of death or life imprisonment.
In
1973 there was again a reshaping of the provision regard- ing the death
penalty. In the Code of Criminal Procedure, 1973, sec. 354(3) was inserted in
these terms:
"When
the conviction is for an offence punishable with death, or in the alternative
with the imprisonment for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence awarded, and in the case of
sentence of death, the special reasons for such sentence." It is now
obligatory for the court to state reasons for the sentence awarded for the
offence of murder. The court cannot award death sentence without giving special
reasons.
As
earlier noticed that death sentence Could be awarded only in exceptional cases
and not in the usual run of murders. We have got just six offences carrying
death penalty and that too as an alternate sentence (Sections 120B, 121, 132,
302,307 and 396 IPC).
This
is the need and notion of the present day society.
Tomorrow's
society and the atmosphere in which they live may be quite different. They may
not have rapist murderers like Ranga and Billa. They may not have any merciless
killing and bride-burning- They may have more respect for each other life. They
may be free from criminalisation of politics and elimination of political
leaders by muscle power. There then the penal law cannot remain isolated and
untouched. It will be profoundly influenced by philosophy prevailing. Time may
reach for the representatives of people to consider that death penalty even as
an alternate sentence for murder is uncalled for and unnecessary. There is 544
nothing in our Constitution to preclude them from deleting that alternate
sentence. The crusade against capital punish- ment may,, therefore, go on
elsewhere and not in this Court.
Let me
now turn to the pivotal question which I have referred at the beginning of the
judgment. The question is whether the sentence of life imprisonment should be substi-
tuted on account of time factor alone, however, right and valid and death
sentence was at the time when it was award- ed. The arguments for the
petitioners primarily rested on the common area of agreement in Vaitheeswaran
and Sher Singh cases on the implication of Article 21. The accepted princi- ple
according to counsel, is that prolonged delay in execu- tion would be
"unjust, unfair and unreasonable". It would be inhuman and dehumanising
to keep the condemned person for a long period. It offends the constitutional
safeguards under Article 21.
Article
21 of the Constitution mandates the state that no person shah be deprived of
his life or personal liberty except according to the procedure established by
law. The scope and content of this Article has been the subject matter of
intensive examination in the recent decisions of this Court.I do not want to
add to the length of this judg- ment by recapitulating all those decisions in
detail. I may only highlight some of the observations which are relevant to the
present case. In Maneka Gandhi v. Union of India, [1978] 1 SCC 248 this Court
gave a new dimension to Article
21.
The seven Judge bench held that a statute which merely prescribes some kind of
procedure for depriving a person of his life or personal liberty cannot meet
the requirements of Article 21. Bhagwati, J., as he then was, while explaining
the nature and requirement of procedure under Article 21 observed (at 283):
"We
must reiterate here what was pointed out by the majority in E.P. Rayappa v.
State of Tamil Nadu, [1974] 3. SCR 348: [1974] 4 SCC (L
& S) 165, namely, that from a posi- tivistic point of view, equally is
antithetic to arbitrariness. In fact equality and arbi- trariness are sworn
enemies; one belongs to the rule of law in a republic, while the other, to the
whim and caprice of an absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both accord- ing to political logic and
constitutional law and is, therefore, violative of Article 14".
Article
14 strikes at arbitrariness in State action and ensures fairness and equality
of treatment. The principle of reasonableness, which 545 legally as well as
philosophically, is an essential element of equality or non-arbi- trariness
pervades Article 14 like a brooding omni-presence and the procedure
contemplated by Article 21 must answer the test of reasona- bleness in order to
be in conformity .with Article 14. It must be "right and just and
fair" and not "arbitrary, fanciful or oppres- sive", otherwise,
it would be no procedure at all and the requirement of Article 21 would not be
satisfied." If one prefers to go yet further back, the procedural fairness
in the defence of liberties was insisted upon even in 1952. The State of West
Bengal v. Anwar Ali, [1952] SCR 284 Bose, J., remarked (at 367):
"The
question with which I charge myself, is, can fair-minded, reasonable, unbiased
and resolute men, who are not swayed by emotion or prejudice, regard this with equa-
nimity and call it reasonable, just and fair, regard it as that' equal
treatment and protection in the defence of liberties which is expected of a
sovereign democratic repub- lic in the conditions which obtain in India today?
I have but one answer to that. On that short and simple ground I would decide
this case and hold the Act bad." In Bachan Singh case, Sarkaria, J., affirming
this view said (at 730):
"No
person shall be deprived of his life br personal liberty except according to
fair, just and reasonable procedure estab- lished by valid law." In Mithu
v. State of Punjab, [1983] 2 SCC 277 Chandra- chud. C.J., said (at 284):
"
.... that the last word on the question of justice and fairness does not rest
with the legislature. Just as reasonableness of restrictions under clauses (2)
to (6) of Article 19 is the for the courts to determine, so is it for the
courts to decide whether the procedure prescribed by a law for depriving a
person of his life or liberty is fair, just and reasonable." In Sher Singh
v. State of Punjab, [1983] 2 SCC 582 Chandrachud, C.J. again explained (at
593):
546
"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 endea- vour 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 impo- sition of that sentence and its
execution. The essence of the matter is that all procedure no matter the stage,
must be fair, just and reasonable." Article 21 thus received a creative
connotation. It demands that any procedure which takes away the life and
liberty of persons must be reasonable, just and fair. The procedural fairness
is required to be observed at every stage and till the last breath of the life.
In Vaitheeswaran
the court thought that the delay of two years would make it unreasonable under
Article 21 to execute death sentence. The court did not attach importance to
the cause of delay. The Cause of delay was immaterial. The accused himself may
be responsible for the delay. The court said that the appropriate relief would
be to vacate the death sentence and substitute life imprisonment instead.
The
learned counsel for the petitioners argued that if two years period of delay
set out in Vaitheeswaran does not present favourably, we may fix any other
period but we should not disturb the basis of the decision. He invited our
attention to a number of authorities where courts have awarded life
imprisonment on the ground of delay in disposal of cases.
In
Vivian Rodrick v. The State of West Bengal, [1971] 1 SCR 468 six years delay
was considered sufficient for impos- ing a lesser sentence of imprisonment for
life. In State of U.P. v. Paras Nath Singh & Ors., [1973] 3 SCC 647, the
Court, while reversing the order of acquittal awarded life imprisonment on the
ground that the accused was under sen- tence of death till he was acquitted by
the High Court.
Similar
was the view taken in State of Bihar v. Pashupati Singh, [1974] 3 SCC 376;
State of U.P. v. Suresh, [1981] 3 SCC 635 at 643 and State of U.P. v. Sahai,
[1982] 1 SCC 352.
In
State of U.P.v. Suresh, the accused was given life imprisonment in view of the
fact that seven years had elapsed after the date of murder. In Ram Adhar v.
State of U.P., [1979] 3 SCC 774 at 777, the 547 delay of six years from the
date of occurrence was held sufficient to commute the sentence of death to life
impris- onment. The court also observed that the accused was not responsible in
any manner for the lapse of time that has occurred.
In Nethi
Sreeramulu v. State of A. P., [1974] 3 SCC 3 14 the Court while disposing of
the appeal in 1973 commuted the sentence of death given in 1971 to life
imprisonment. In State of U.P.v. Lalla Singh & Ors., [1978] 1 SCC 142 six
years delay from the date of judgment of the trial court was a consideration
for not giving the death sentence. In Sadhu Singh v. State of U.P., [1978] 4
SCC 428 about three years and seven months during which the accused was under spectre
of death sentence, was one of the relevant factors to reduce the sentence to
life imprisonment.
There
are equally other decisions where in spite of the delay in disposal of the
case, the Court has awarded the death sentence. In Nachhittar Singh v. State of
Punjab, [1975] 3 SCC 266, the court refused to consider the question of delay
as a mitigating circumstances. In Maghar Sing v. State of Punjab, [19751 4 SCC
234, the court said that delay does not appear to be good ground to commute to
life impris- onment in view of the pre-planned, cold-blooded and dastard- ly
murder committed by the accused. In Lajar Mashi v. State of U.P., [1976] 1 SCC
806, the court while confirming the death sentence observed (at 809):
"The
value of such delay as a miti- gating factor depends upon the features of a
particular case. It cannot be divorced from the diabolical circumstances of the
crime itself, which, in the instant case fully justify the award of capital
sentence for the murder of the deceased. We, therefore, uphold the award of the
capital sentence to the appellant and dismiss his appeal." All these
decisions are of little use to determine the constitutionality of execution of
the death sentence on the relevance of delay. These decisions relate to the
sentencing discretion of courts with which we are not concerned. We are
concerned with the right of the accused to demand life imprisonment after the
final verdict of death sentence with every justification to impose it.
The
demand for life imprisonment herein as solely based on the ground of prolonged
delay in the execution. The delay which is sought 548 tO be relied upon by the
accused consists of two parts. The first part covers the time taken in the
judicial proceed- ings. It is the time that the parties have spent for trial,
appeal, further appeal and review. The second part takes into fold the time
utilized by the executive in the exercise of its prerogative clemency.
I
start with the first part of the delay. In Vaitheeswa- ran this part of the
delay was expressly taken into consid- eration. It was observed that the period
of two years as prolonged detention would include the time necessary for appeal
from the sentence of death and consideration of reprieve. In Sher Singh, this
period has not been accepted as good measure. The court said that the fixation
of time limit of two years did not accord with the common experience of time
normally consumed by the litigative process and the proceedings before the
Government.
Mr. Parasaran,
learned Attorney General has altogether a different approach and in my opinion
very rightly. He argued that the time spent by the courts in judicial
proceedings was intended to ensure a fair trial to the accused and cannot be
relied upon by the same accused to impeach the execution of the death sentence.
The relevant provisions in the Indian Penal Code, the Criminal Procedure Code,
the Evidence Act and the Rules made by the High Courts and the Supreme Court
governing the trial, appeal, execution of sentence, etc., were all highlighted.
According to learned Attorney, these provisions are meant to examine the guilt
or innocence of the accused and to have an appropriate sentence commensurate
with the gravity of the crime. They constitute reasonable procedure,
established by law.
I entirely
agree. The time taken in the judicial pro- ceedings by way of trial and appeal
was for the benefit of the accused. It was intended to ensure a fair trial to
the accused and to avoid hurry-up justice. The time is spent in the public
interest for proper administration of justice. If there is inordinate delay in
disposal of the case, the trial court while sentencing or the appellate court
while dispos- ing of the appeal may consider the delay and the cause thereof
along with other circumstances. The court before sentencing is bound to hear
the parties and take into ac- count every circumstance for and against the
accused. If the court awards death sentence, notwithstanding the delay in
disposal of the case, there cannot be a second look at the sentence save by way
of review. There cannot be a second trial on the validity of sentence based on
Article 21. The execution which is impugned is execution of a judgment and not
apart from judgment. If the judgment 549 with the sentence awarded is valid and
binding, it falls to be executed in accordance with law since it is a part of
the procedure established by law. Therefore, if the delay in disposal of the
case is not a mitigating circumstance for lesser sentence, it would be, in my
opinion, wholly inappro- priate to fall back upon the same delay to impeach the
execution.
If the
delay in passing the sentence render the execu- tion unconstitutional, the
delay subsequent thereof cannot also render it unconstitutional. Much less any
fixed period of delay could be held to make the sentence inexecutable. It would
be arbitrary to fix any period of limitation for execution on the ground that
it would be a denial of fair- ness in procedure under Article 21. With respect,
I, am unable to agree with the view taken in Vatheeswaram case on this aspect.
Under
Article 72 of the Constitution, the President shall have the power to
"grant pardons, deprives, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person convicted in an
offence". Under Article 161 of the Constitution, similar is the power of
the Governor to give relief to any person convicted of any offence against any
law relating to a matter to which the executive power of the State extends. The
time taken by the executive for disposal of mercy petitions may depend upon the
nature of the case and the scope of enquiry to be made.
It may
also depend upon the number of mercy petitions sub- mitted by or on behalf of
the accused. The Court, therefore, cannot prescribe a time limit for .disposal Of
even for mercy petitions.
It is,
however, necessary to point out that Article 21 is relevant at all stages. This
Court has emphasized that "the speedy trial in criminal cases though not a
specific fundamental right, is implicit in the broad sweep and con- tent of
Article 21". (See: Hussainara Khatoon v. The State of Bihar, [1979] 3 SCR
169 and 1980 (1) SCC 81. Speedy trial is a part of one's fundamental right to
life and liberty.
(See Kadra
Pahadiya v. State of Bihar, [1981] 3 SCC 671 and 1983 2 SCC 104. This
principle, in my opinion, is no less important for disposal of mercy petition.
It has been uni- versally recognised that a condemned person has to suffer a
degree of mental torture even though there is no physical mistreatment and no
primitive torture. He may be provided with amenities of ordinary inmates in the
prison as stated in Sunil Batra v. Delhi Administration, [1978] 4 SCC 491, but
nobody could succeed in giving him peace of mind.
550 Chita
Chinta Dwayoormadhya, Chinta tatra gariyasi, Chita Dahati Nirjivam, Chinta dahati
Sajeevakam.
As
between funeral fire and mental worry, it is the latter which is more
devastating, for, funeral fire bums only the dead body while the mental worry
burns the living One. This mental torment may become acute when the judicial
verdict is finally set against the accused. Earlier to it, there was every
reason for him to hope for acquittal. That hope is extinguished after the final
verdict. If, therefore, there is inordinate delay in execution, the condemned pris-
oner is entitled to come to the court requesting to examine whether, it is just
and fair to allow the sentence of death to be executed.
What
should be done by the Court is the next point for consideration. It is
necessary to emphasise that the juris- diction of the Court at this stage is
extremely limited. If the Court wants to have a look at the grievance as to
delay, it is needless to state, that there should not be any delay either in
listing or in disposal of the matter. The person who complains about the delay
in the execution should not be put to further delay. The matter, therefore,
must be expedi- tiously and on top priority basis, disposed of. 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. The Court has still to consider as observed in Sher Singh case (at
596):
"The
nature of the offence, the diverse circum- stances attendant upon it, its
impact upon the contemporary society and the question whether the motivation
and pattern of 551 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 last contention urged for the petitioners that the
accused should not be executed if he was since improved is unavailable since it
seeks to substitute a new procedure which the Code does not provide for.
We
have already considered all these cases in the light of these principles and
disposed them of by our earlier unanimous order.
N
.P.V.
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