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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 55 OF 2013
Shatrughan Chauhan & Anr. .... Pettoner (s)
Versus
Unon of Inda & Ors. ....
Respondent(s)
WITH
WRIT PETITION (CRIMINAL) NO. 34 OF 2013
WRIT PETITION (CRIMINAL) NO. 56 OF 2013
WRIT PETITION (CRIMINAL) NO. 136 OF 2013
WRIT PETITION (CRIMINAL) NO. 13 OF 2013
WRIT PETITION (CRIMINAL) NO. 141 OF 2013
WRIT PETITION (CRIMINAL) NO. 132 OF 2013
WRIT PETITION (CRIMINAL) NO. 1!" OF 2013
WRIT PETITION (CRIMINAL) NO. 1!! OF 2013
WRIT PETITION (CRIMINAL) NO. 10 OF 2013
WRIT PETITION (CRIMINAL) NO. 11 OF 2013
WRIT PETITION (CRIMINAL) NO. 12 OF 2013
WRIT PETITION (CRIMINAL) NO. 13 OF 2013
J U D G M E N T
P.S#$%#&'(#)* CJI.
1) Our Consttuton s hghy vaued for ts artcuaton.
One such astute draftng s Artce 21 of the Consttuton
whch postuates that every human beng has nherent
rght to fe and mandates that no person sha be deprved
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of hs fe or persona berty except accordng to the
procedure estabshed by aw. Over the span of years, ths
Court has expanded the horzon of right to life
guaranteed under the Consttuton to baance wth the
progress of human fe. Ths case provdes yet another
momentous occason, where ths Court s caed upon to
decde whether t w be n voaton of Artce 21, amongst
other provsons, to execute the eved death sentence on
the accused notwthstandng the exstence of supervenng
crcumstances. Let us examne the supervenng
crcumstances of each ndvdua case to arrve at a
coherent decson.
2) A the above wrt pettons, under Artce 32 of the
Consttuton of Inda, have been fed ether by the
convcts, who were awarded death sentence or by ther
famy members or by pubc-sprted bodes ke Peopes
Unon for Democratc Rghts (PUDR) based on the re|ecton
of mercy pettons by the Governor and the Presdent of
Inda.
3) In a the wrt pettons, the man prayer consstenty
reates to the ssuance of a wrt of decaraton decarng
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that executon of sentence of death pursuant to the
re|ecton of the mercy pettons by the Presdent of Inda s
unconsttutona and to set asde the death sentence
mposed upon them by commutng the same to
mprsonment for fe. Further, t s aso prayed for
decarng the order passed by the Governor/Presdent of
Inda re|ectng ther respectve mercy pettons as ega
and unenforceabe. In vew of the smarty of the reefs
sought for n a the wrt pettons, we are not reproducng
every prayer hereunder, however, whe deang wth
ndvdua cams, we sha dscuss factua detas, the
reefs sought for and the grounds urged n support of ther
cam at the approprate pace. Besdes, n the wrt petton
fed by PUDR, PUDR prayed for varous drectons n
respect of procedure to be foowed whe consderng the
mercy pettons, and n genera for protecton of rghts of
the death row convcts. We sha dscuss dscretey the
aforesad prayers n the ensung paragraphs.
4) Heard Mr. Ram |ethmaan, Mr. Anand Grover, Mr. R.
Basant, Mr. Con Gonsaves, earned senor counse and
Dr. Yug Moht Chaudhary, earned counse for the
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pettoners and Mr. Mohan Parasaran, earned Soctor
Genera, Mr. L.N. Rao, Mr. Sddharth Luthra, earned
Addtona Soctor Generas, Mr. V.C. Mshra, earned
Advocate Genera, Mr. V.N. Raghupathy, Ms. Antha
Shenoy, Mr. Ra|v Nanda, Mr. C.D. Sngh, earned counse
and Mr. Man|t Sngh, Addtona Advocate Genera for the
respondents. We aso heard Mr. T.R. Andhyaru|na,
earned senor counse as amicus curiae.
5) Before consderng the merts of the cam of
ndvdua case, t s essenta to deberate on certan vta
ponts of aw that w be ncdenta and decsve for
determnng the case at hand.
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6) Before we advert to the ssue of mantanabty of
the pettons, t s pertnent to grasp the sgnfcance of
Artce 32 as foreseen by Dr. Ambedkar, the prncpa
archtect of the Indan Consttuton. Hs words were
appostey reterated n Minerva Mills Ltd. and Ors. vs.
Union of India and Ors. (1980) 2 SCC 625 as foows:-
"!". ..If I was asked to name any partcuar Artce n ths
Consttuton as the most mportant - an Artce wthout whch
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ths Consttuton woud be a nuty - I coud not refer to any
other Artce except ths one. It s the very sou of the
Consttuton and the very heart of t." (emphass supped)
The fundamenta rght to move ths Court can, therefore,
be appropratey descrbed as the corner-stone of the
democratc edfce rased by the Consttuton. At the same
tme, ths Court, n A.R Antulay vs. Union of India
(1988) 2 SCC 602, carfed and pronounced that any wrt
petton under Artce 32 of the Consttuton chaengng
the vadty of the order or |udgment passed by ths Court
as nuty or otherwse ncorrect cannot be entertaned. In
ths ght, et us examne the mantanabty of these
pettons.
7) The aforesad pettons, under Artce 32 of the
Consttuton, seek reef aganst aeged nfrngement of
certan fundamenta rghts on account of faure on the
part of the executve to dspose of the mercy pettons
fed under Artce 72/161 of the Consttuton wthn a
reasonabe tme.
8) At the outset, the pettoners heren |usty eucdated
that they are not chaengng the fna verdct of ths Court
wheren death sentence was mposed. In fact, they
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asserted n ther respectve pettons that f the sentence
had been executed then and there, there woud have been
no grevance or cause of acton. However, t wasnt and
the supervenng events that occurred after the fna
confrmaton of the death sentence are the bass of fng
these pettons.
9) It s a tme-honored prncpe, as stpuated n R.D
Shetty vs. International Airport Authority (1979) 3
SCC 489, that no matter, whether the voaton of
fundamenta rght arses out of an executve
acton/nacton or acton of the egsature, Artce 32 can
be utzed to enforce the fundamenta rghts n ether
event. In the gven case, the stand of the pettoners
heren s that exercse of the consttutona power vested
n the executve specfed under Artce 72/161 has
voated the fundamenta rghts of the pettoners heren.
Ths Court, as n past, entertaned the pettons of the
gven knd and ssued approprate orders as n T.V.
Vatheeswaran vs. State of Tamil adu (1983) 2 SCC
68, Sher Sin!h and Ors. vs. State of "un#a$ (1983) 2
SCC 344 Triveni$en vs. State of %u#arat (1988) 4 SCC
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574 etc. Accordngy, we accede to the stand of the
pettoners and hod that the pettons are mantanabe.
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10) It s apposte to refer the reevant Artces whch gve
power to the Presdent of Inda and the Governor to grant
pardons and to suspend, remt or commute sentences n
certan cases. They are as foows:
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1$8. #+7 $/ &2&41+7* 31)'$ /3 8/))2$1 &1+$1+81&
'+ 813$#'+ 8#&1& - (1) The Presdent sha have the
power to grant pardons, repreves, resptes or
remssons of punshment or to suspend, remt or
commute the sentence of any person convcted of any
offence -
(a) n a cases where the punshment or sentence s by
a Court Marta;
(b) n a cases where the punshment or sentence s for
an offence aganst any aw reatng to a matter to
whch the executve power of the Unon extends;
(c) n a cases where the sentence s a sentence of
death.
(2) Nothng n sub-cause (a) of cause (1) sha affect
the power conferred by aw on any offcer of the
Armed Forces of the Unon to suspend, remt or
commute a sentence passed by a Court marta.
(3) Nothng n sub-cause of cause (1) sha affect the
power to suspend, remt or commute a sentence
of death exercsabe by the Governor of a State,
under any aw for the tme beng n force."
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1$8. #+7 $/ &2&41+7* 31)'$ /3 8/))2$1 &1+$1+81&
'+ 813$#'+ 8#&1& - The Governor of a State sha have
the power to grant pardons, repreves, resptes or
remssons of punshment or to suspend, remt or
commute the sentence of any person convcted of any
offence aganst any aw reatng to a matter to whch the
executve power of the State extends."
11) The memor and scope of Artce 72/161 of the
Consttuton was extensvey consdered n &ehar Sin!h
vs. Union of India ' Anr.( (1989) 1 SCC 204 n the
foowng words:
:". The Consttuton of Inda, n keepng wth modern
consttutona practce, s a consttutve document,
fundamenta to the governance of the country, whereby,
accordng to accepted potca theory, the peope of Inda
have provded a consttutona poty consstng of certan
prmary organs, nsttutons and functonares to exercse
the powers provded n the Consttuton. A power beongs
to the peope, and t s entrusted by them to specfed
nsttutons and functonares wth the ntenton of workng
out, mantanng and operatng a consttutona order. The
Preambuar statement of the Consttuton begns wth the
sgnfcant recta:
We, the peope of Inda, havng soemny resoved to
consttute Inda nto a Soveregn Socast Secuar
Democratc Repubc... do hereby adopt, enact and
gve to ourseves ths Consttuton.
To any cvzed socety, there can be no attrbutes more
mportant than the fe and persona berty of ts
members. That s evdent from the paramount poston
gven by the courts to Artce 21 of the Consttuton. These
twn attrbutes en|oy a fundamenta ascendancy over a
other attrbutes of the potca and soca order, and
consequenty, the Legsature, the Executve and the
|udcary are more senstve to them than to the other
attrbutes of day exstence. The deprvaton of persona
berty and the threat of the deprvaton of fe by the
acton of the State s n most cvsed socetes regarded
serousy and, recourse, ether under express
consttutona provson or through egsatve enactment s
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provded to the |udca organ. But, the fabty of human
|udgment beng undenabe even n the most traned mnd,
a mnd resourced by a harvest of experence, t has been
consdered approprate that n the matter of fe and
persona berty, the protecton shoud be extended by
entrustng power further to some hgh authorty to
scrutnse the vadty of the threatened dena of fe or the
threatened or contnued dena of persona berty. The
power so entrusted s a power beongng to the peope and
reposed n the hghest dgntary of the State. In Engand,
the power s regarded as the roya prerogatve of pardon
exercsed by the Soveregn, generay through the Home
Secretary. It s a power whch s capabe of exercse on a
varety of grounds, for reasons of State as we as the
desre to safeguard aganst |udca error. It s an act of
grace ssung from the Soveregn. In the Unted States,
however, after the foundng of the Repubc, a pardon by
the Presdent has been regarded not as a prvate act of
grace but as a part of the consttutona scheme. In an
opnon, remarkabe for ts erudton and carty, Mr |ustce
Homes, speakng for the Court n W.I. Bdde v. Vuco
Perovch 71 L Ed 1161) enuncated ths vew, and t has
snce been affrmed n other decsons. The power to
pardon s a part of the consttutona scheme, and we have
no doubt, n our mnd, that t shoud be so treated aso n
the Indan Repubc. It has been reposed by the peope
through the Consttuton n the Head of the State, and
en|oys hgh status. It s a consttutona responsbty of
great sgnfcance, to be exercsed when occason arses n
accordance wth the dscreton contempated by the
context. It s not dened, and ndeed t has been repeatedy
affrmed n the course of argument by earned Counse,
Shr Ram |ethmaan and Shr Shant Bhushan, appearng
for the Pettoner that the power to pardon rests on the
advce tendered by the Executve to the Presdent, who
sub|ect to the provsons of Artce 74(1) of the
Consttuton, must act n accordance wth such advce.."
(Emphass Supped)
In that case, the Consttuton Bench aso consdered
whether the Presdent can, n exercse of the power
under Artce 72 of the Consttuton, scrutnze the
evdence on record and come to a dfferent concuson
than the one arrved at by the Court and hed as under:
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:10. We are of the vew that t s open to the Presdent n
the exercse of the power vested n hm by Artce 72 of
the Consttuton to scrutnse the evdence on the record of
the crmna case and come to a dfferent concuson from
that recorded by the court n regard to the gut of, and
sentence mposed on, the accused. In dong so, the
Presdent does not amend or modfy or supersede the
|udca record. The |udca record remans ntact, and
undsturbed. The Presdent acts n a whoy dfferent pane
from that n whch the Court acted. He acts under a
consttutona power, the nature of whch s entrey
dfferent from the |udca power and cannot be regarded
as an extenson of t. and ths s so, notwthstandng that
the practca effect of the Presdenta act s to remove the
stgma of gut from the accused or to remt the sentence
mposed on hm....
The ega effect of a pardon s whoy dfferent from a
|udca supersesson of the orgna sentence. It s the
nature of the power whch s determnatve....
It s apparent that the power under Artce 72 enttes the
Presdent to examne the record of evdence of the
crmna case and to determne for hmsef whether the
case s one deservng the grant of the reef fang wthn
that power. We are of opnon that the Presdent s entted
to go nto the merts of the case notwthstandng that t
has been |udcay concuded by the consderaton gven to
t by ths Court.
16. .the power under Artce 72 s of the wdest
amptude, can contempate a myrad knds and
categores of cases wth facts and stuatons varyng from
case to case, n whch the merts and reasons of State
may be profoundy asssted by prevang occason and
passng tme. and t s of great sgnfcance that the
functon tsef en|oys hgh status n the consttutona
scheme."
12) Both Artces 72 and 161 repose the power of the
peope n the hghest dgntares, .e., the Presdent or the
Governor of a State, as the case may be, and there are no
words of mtaton ndcated n ether of the two Artces.
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The Presdent or the Governor, as the case may be, n
exercse of power under Artce 72/161 respectvey, may
examne the evdence afresh and ths exercse of power s
ceary ndependent of the |udcary. Ths Court, n
numerous nstances, carfed that the executve s not
sttng as a court of appea rather the power of
Presdent/Governor to grant remsson of sentence s an
act of grace and humanty n approprate cases, .e.,
dstnct, absoute and unfettered n ts nature.
13) In ths context, the deberatons n )puru Sudha*ar
' Anr. vs. %ovt. of A.". ' Ors., (2006) 8 SCC 161 are
reevant whch are as under:
"16. The phosophy underyng the pardon power s that
"every cvzed country recognzes, and has therefore
provded for, the pardonng power to be exercsed as an act
of grace and humanty n proper cases. Wthout such a power
of cemency, to be exercsed by some department or
functonary of a government, a country woud be most
mperfect and defcent n ts potca moraty, and n that
attrbute of Dety whose |udgments are aways tempered
wth mercy. |See 59 Amercan |ursprudence 2d, page 5|
1". The ratonae of the pardon power has been fectousy
enuncated by the ceebrated |ustce Homes of the Unted
States Supreme Court n the case of Bdde v. Perovch n
these words 71 L. Ed. 1161 at 1163: A pardon n our days s
not a prvate act of grace from an ndvdua happenng to
possess power. It s a part of the consttutona scheme.
When granted, t s the determnaton of the utmate
authorty that the pubc wefare w be better served by
nfctng ess than what the |udgment fxed." (emphass
added)
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14) Artce 72/161 of the Consttuton enta remedy to a
the convcts and not mted to ony death sentence cases
and must be understood accordngy. It contans the
power of repreve, remsson, commutaton and pardon for
a offences, though death sentence cases nvoke the
strongest sentment snce t s the ony sentence that
cannot be undone once t s executed.
15) Shr Andhyaru|na, earned senor counse, who
asssted the Court as amicus commenced hs submssons
by pontng out that the power reposed n the Presdent
under Artce 72 and the Governor under Artce 161 of the
Consttuton s not a matter of grace or mercy, but s a
consttutona duty of great sgnfcance and the same has
to be exercsed wth great care and crcumspecton
keepng n vew the arger pubc nterest. He referred to
the |udgment of the U.S. Supreme Court n +iddle vs.
"erovo,h 274 US 480 as aso the |udgments of ths Court
n &ehar Sin!h -supra. and )puru Sudha*ar -supra..
16) In ths context, n &ul#eet Sin!h vs. Lt. %overnor
(1982) 1 SCC 417, ths Court hed:
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"1. The queston as regards the scope of the power of
the Presdent under Artce 72 of the Consttuton to
commute a sentence of death nto a esser sentence
may have to awat examnaton on an approprate
occason. Ths ceary s not that occason because
nsofar as ths case s concerned, whatever be the
gude-nes observed for the exercse of the power
conferred by Artce 72, the ony sentence whch can
possby be mposed upon the pettoner s that of death
and no crcumstances exst for nterference wth that
sentence. Therefore we see no |ustfcaton for sayng
that n refusng to commute the sentence of death
mposed upon the pettoner nto a esser sentence, the
Presdent has n any manner transgressed hs
dscretonary power under Artce 72. Undoubtedy, the
Presdent has the power n an approprate case to
commute any sentence mposed by a court nto a esser
sentence and as sad by Chef |ustce Taft n James
Shewan and Sons v. U.S., the "executve cemency
exsts to afford reef from undue harshness or evdent
mstake n the operaton or enforcement of the crmna
aw" and that the admnstraton of |ustce by the courts
s not necessary or certany consderate of
crcumstances whch may propery mtgate gut. But
the queston as to whether the case s approprate for
the exercse of the power conferred by Artce 72
depends upon the facts and crcumstances of each
partcuar case. The necessty or the |ustfcaton for
exercsng that power has therefore to be |udged from
case to case. In fact, we do not see what usefu purpose
w be acheved by the pettoner by ensurng the
mposton of any severe, |udcay evoved constrants
on the whoesome power of the Presdent to use t as
the |ustce of a case may requre. After a, the power
conferred by Artce 72 can be used ony for the purpose
of reducng the sentence, not for enhancng t. We need
not, however, go nto that queston eaboratey because
nsofar as ths case s concerned, we are qute cear that
not even the most bera use of hs mercy |ursdcton
coud have persuaded the Presdent to nterfere wth the
sentence of death mposed upon the pettoner, n vew
partcuary of the consderatons mentoned by us n our
|udgment n Kuljeet Singh v. Union of India. We may
reca what we sad n that |udgment that "the death of
the Chopra chdren was caused by the pettoner and
hs companon Ba after a savage pannng whch bears
a professona stamp", that the "survva of an ordery
socety demands the extncton of the fe of persons ke
Ranga and Ba who are a menace to soca order and
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securty", and that "they are professona murderers and
deserve no sympathy even n terms of the evovng
standards of decency of a mature socety."
17) In concse, the power vested n the Presdent under
Artce 72 and the Governor under Artce 161 of the
Consttuton s a Consttutona duty. As a resut, t s
nether a matter of grace nor a matter of prvege but s
an mportant consttutona responsbty reposed by the
peope n the hghest authorty. The power of pardon s
essentay an executve acton, whch needs to be
exercsed n the ad of |ustce and not n defance of t.
Further, t s we setted that the power under Artce
72/161 of the Consttuton of Inda s to be exercsed on
the ad and advce of the Counc of Mnsters.
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2+713 A3$'8-1 "29161
18) As aready emphaszed, the power of the executve
to grant pardon under Artce 72/161 s a Consttutona
power and ths Court, on numerous occasons, has
decned to frame gudenes for the exercse of power
under the sad Artces for two reasons. Frsty, t s a
setted proposton that there s aways a presumpton that
the consttutona authorty acts wth appcaton of mnd
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as has been reterated n +i*as /hatter#ee vs. Union of
India (2004) 7 SCC 634. Secondy, ths Court, over the
span of years, unanmousy took the vew that consderng
the nature of power enshrned n Artce 72/161, t s
unnecessary to spe out specfc gudenes. In ths
context, n )puru Sudha*ar -supra., ths Court hed
thus:
"36. So far as desrabty to ndcate gudenes s
concerned n Ashok Kumar case t was hed as foows:
(SCC pp. 518-19, para 17)
"1. In Kehar Singh case on the queston of ayng
down gudenes for the exercse of power under
Artce 72 of the Consttuton ths Court observed n
para 16 as under: (SCC pp. 217-18, para 16)
It seems to us that there s suffcent ndcaton n
the terms of Artce 72 and n the hstory of the
power enshrned n that provson as we as
exstng case-aw, and specfc gudenes need not
be speed out. Indeed, t may not be possbe to ay
down any precse, ceary defned and suffcenty
channesed gudenes, for we must remember that
the power under Artce 72 s of the wdest
amptude, can contempate a myrad knds and
categores of cases wth facts and stuatons
varyng from case to case, n whch the merts and
reasons of State may be profoundy asssted by
prevang occason and passng tme. And t s of
great sgnfcance that the functon tsef en|oys
hgh status n the consttutona scheme.
These observatons do ndcate that the Consttuton
Bench whch decded Kehar Singh case was of the vew
that the anguage of Artce 72 tsef provded suffcent
gudenes for the exercse of power and havng regard
to ts wde amptude and the status of the functon to be
dscharged thereunder, t was perhaps unnecessary to
spe out specfc gudenes snce such gudenes may
not be abe to conceve of a myrad knds and
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categores of cases whch may come up for the exercse
of such power. No doubt n !aru "am case the
Consttuton Bench dd recommend the framng of
gudenes for the exercse of power under Artces
72/161 of the Consttuton. But that was a mere
recommendaton and not a rato decdend havng a
bndng effect on the Consttuton Bench whch decded
Kehar Singh case. Therefore, the observaton made by
the Consttuton Bench n Kehar Singh case does not
upturn any rato ad down n !aru "am case. Nor has
the Bench n Kehar Singh case sad anythng wth regard
to usng the provsons of extant Remsson Rues as
gudenes for the exercse of the cemency powers."
19) Nevertheess, ths Court has been of the consstent
vew that the executve orders under Artce 72/161 shoud
be sub|ect to mted |udca revew based on the ratonae
that the power under Artce 72/161 s #er se above
|udca revew but the manner of exercse of power s
certany sub|ect to |udca revew. Accordngy, there s no
dspute as to the setted ega proposton that the power
exercsed under Artce 72/161 coud be the sub|ect matter
of mted |udca revew. |vde &ehar Sin!h -supra.0
Asho* &umar -supra.0 Swaran Sin!h vs. State of U."
AIR 1998 SC 2026; Satpal and Anr. vs. State of
1aryana and Ors. AIR 2000 SC 1702; and +i*as
/hatter#ee -supra.<
20) Though the contours of power under Artce 72/161
have not been defned, ths Court, n arayan Dutt vs.
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State of "un#a$ (2011) 4 SCC 353, para 24, has hed that
the exercse of power s sub|ect to chaenge on the
foowng grounds:
a) If the Governor had been found to have
exercsed the power hmsef wthout beng
advsed by the government;
b) If the Governor transgressed hs |ursdcton n
exercsng the sad power;
c) If the Governor had passed the order wthout
appyng hs mnd;
d) The order of the Governor was mala fide; or
e) The order of the Governor was passed on some
extraneous consderatons.
These propostons are cumnaton of vews setted by ths
Court that:
() Power shoud not be exercsed maafdey. (Vde
Maru Ram vs. Union of India, paras 62, 63 &
65).
17
Page 18
() No potca consderatons behnd exercse of
power. In ths context, n )puru Sudha*ar
-supra.( ths Court hed thus:
"34. The poston, therefore, s undenabe that
|udca revew of the order of the Presdent or the
Governor under Artce 72 or Artce 161, as the
case may be, s avaabe and ther orders can be
mpugned on the foowng grounds:
a) that the order has been passed wthout
appcaton of mnd;
($) that the order s maa fde;
(c) that the order has been passed on extraneous
or whoy rreevant consderatons;
(d) that reevant materas have been kept out of
consderaton;
(e) that the order suffers from arbtrarness.
35. Two mportant aspects were aso hghghted
by earned amcus curae; one reatng to the
desrabty of ndcatng reasons n the order
grantng pardon/remsson whe the other was an
equay more mportant queston reatng to power
to wthdraw the order of grantng
pardon/remsson, f subsequenty, materas are
paced to show that certan reevant materas
were not consdered or certan materas of
extensve vaue were kept out of consderaton.
Accordng to earned amcus curae, reasons are to
be ndcated, n the absence of whch the exercse
of |udca revew w be affected.
3". In Kehar Singh case ths Court hed that: (SCC
p. 216, para 13)
"There s aso no queston nvoved n ths
case of askng for the reasons for the
Presdents order."
3!. The same obvousy means that the affected
party need not be gven the reasons. The queston
whether reasons can or cannot be dscosed to the
Court when the same s chaenged was not the
sub|ect-matter of consderaton. In any event, the
absence of any obgaton to convey the reasons
does not mean that there shoud not be egtmate
18
Page 19
or reevant reasons for passng the order."
21) A perusa of the above case-aws makes t cear that
the Presdent/Governor s not bound to hear a petton for
mercy before takng a decson on the petton. The
manner of exercse of the power under the sad artces s
prmary a matter of dscreton and ordnary the courts
woud not nterfere wth the decson on merts. However,
the courts retan the mted power of |udca revew to
ensure that the consttutona authortes consder a the
reevant materas before arrvng at a concuson.
22) It s the cam of the pettoners heren that the
mpugned executve orders of re|ecton of mercy pettons
aganst 15 accused persons were passed wthout
consderng the supervenng events whch are cruca for
decdng the same. The ega bass for takng supervenng
crcumstances nto account s that Artce 21 nheres a
rght n every prsoner t hs ast breath and ths Court w
protect that rght even f the noose s beng ted on the
condemned prsoners neck. |('71 Sher Sin!h -supra.(
Triveni$en -supra.( Vatheeswaran -supra.( 2a!dish
vs. State of Madhya "radesh (2009) 9 SCC 495|.
19
Page 20
23) Certany, deay s one of the permtted grounds for
mted |udca revew as stpuated n the stare decisis.
Henceforth, we sha scrutnze the cam of the pettoners
heren and fnd out the effect of supervenng
crcumstances n the case on hand.
S2413(1+'+6 C'382)&$#+81&
24) The pettoners heren have asserted the foowng
events as the supervenng crcumstances, for
commutaton of death sentence to fe mprsonment.
-i. Delay
-ii. Insanity
-iii. Solitary /onfinement
-iv. 2ud!ments de,lared per in,uriam
-v. "ro,edural Lapses
25) A the pettoners have more or ess asserted on the
aforesad grounds whch, n ther opnon, the executve
had faed to take note of whe re|ectng the mercy
pettons fed by them. Let us dscuss them dstnctvey
and come to a concuson whether each of the
crcumstances excusvey or together warrants the
20
Page 21
commutaton of death sentence nto fe mprsonment.
-i. Delay
26) It s pre-requste to comprehend the procedure
adopted under Artce 72/161 for processng the mercy
petton so that we may be n a poston to apprecate the
aspect of deay as one of the supervenng crcumstances.
27) The death row convcts nvaraby approached the
Governor under Artce 161 of the Consttuton of Inda
wth a mercy petton after ths Court fnay decded the
matter. Durng the pendency of the mercy petton, the
executon of death sentence was stayed. As per the
procedure, once the mercy petton s re|ected by the
Governor, the convct prefers mercy petton to the
Presdent. Thereafter, the mercy petton receved n
Presdents offce s forwarded to the Mnstry of Home
Affars. Normay, the mercy petton conssts of one or
two pages gvng grounds for mercy. To examne the
mercy petton so receved and to arrve at a concuson,
the documents ke copy of the |udgments of the tra
Court, Hgh Court and the Supreme Court are requested
from the State Government. The other documents
21
Page 22
requred ncude detas of the decson taken by the
Governor under Artce 161 of the Consttuton,
recommendatons of the State Government n regard to
grant of mercy petton, copy of the records of the case,
nomna roe of the convct, heath status of the prsoner
and other reated documents. A these detas are
gathered from the State/Prson authortes after the
recept of the mercy petton and, accordng to the Unon
of Inda, t takes a ot of tme and nvove protracted
correspondence wth prson authortes and State
Government. It s aso the cam of the Unon of Inda that
these documents are then extensvey examned and n
some senstve cases, varous #ros and cons are weghed
to arrve at a decson. Sometmes, person or at ther
nstance some of ther reatves, fe mercy pettons
repeatedy whch cause undue deay. In other words,
accordng to the Unon of Inda, the tme taken n
examnaton of mercy pettons may depend upon the
nature of the case and the scope of nqury to be made. It
may aso depend upon the number of mercy pettons
submtted by or on behaf of the accused. It s the cam of
22
Page 23
the respondents that there cannot be a specfc tme mt
for examnaton of mercy pettons.
28) It s aso the cam of the respondents that Artce 72
envsages no mt as to tme wthn whch the mercy
petton s to be dsposed of by the Presdent of Inda.
Accordngy, t s contended that snce no tme mt s
prescrbed for the Presdent under Artce 72, the courts
may not go nto t or fx any outer mt. It s aso
contended that the power of the Presdent under Artce
72 s dscretonary whch cannot be taken away by any
statutory provson and cannot be atered, modfed or
nterfered wth, n any manner, whatsoever, by any
statutory provson or authorty. The powers conferred on
the Presdent are speca powers overrdng a other aws,
rues and reguatons n force. Deay by tsef does not
enta the person under sentence of death to request for
commutaton of sentence nto fe mprsonment.
29) It s aso ponted out that the decson taken by the
Presdent under Artce 72 s communcated to the State
Government/Unon Terrtory concerned and to the prsoner
through State Government/Unon Terrtory. It s aso
23
Page 24
brought to our notce that as per Lst II Entry 4 of the
Seventh Schedue to the Consttuton of Inda, "Prsons
and persons detaned theren" s a State sub|ect.
Therefore, a steps for executon of capta punshment
ncudng nformng the convct and hs/her famy, etc. are
requred to be taken care of by the concerned State
Governments/Unon Terrtores n accordance wth ther |a
manua/rues etc.
30) On the contrary, t s the pea of the pettoners that
after exhaustng of the proceedngs n the courts of aw,
the aggreved convct gets rght to make a mercy petton
before the Governor and the Presdent of Inda
hghghtng hs grevance. If there s any undue,
unreasonabe and proonged deay n dsposa of hs mercy
petton, the convct s entted to approach ths Court by
way of a wrt petton under Artce 32 of the Consttuton.
It s vehementy asserted that the executon of death
penaty n the face of such an nordnate deay woud
nfrnge fundamenta rght to fe under Artce 21 of the
Consttuton, whch woud nvte the exercse of the
|ursdcton by ths Court.
24
Page 25
31) The rght to fe s the most fundamenta of a rghts.
The rght to fe, as guaranteed under Artce 21 of the
Consttuton of Inda, provdes that no person sha be
deprved of hs fe and berty except n accordance wth
the procedure estabshed by aw. Accordng to earned
counse for the Unon of Inda, death sentence s mposed
on a person found guty of an offence of henous nature
after adherng to the due procedure estabshed by aw
whch s sub|ect to appea and revew. Therefore, deay n
executon must not be a ground for commutaton of
sentence of such a henous crme. On the other hand, the
argument of earned counse for the pettoners/death
convcts s that human fe s sacred and nvoabe and
every effort shoud be made to protect t. Therefore,
nasmuch as Artce 21 s avaabe to a the persons
ncudng convcts and contnues t ast breath f they
estabsh and prove the supervenng crcumstances, vz.,
undue deay n dsposa of mercy pettons, undoubtedy,
ths Court, by vrtue of power under Artce 32, can
commute the death sentence nto mprsonment for fe.
As a matter of fact, t s the stand of the pettoners that n
25
Page 26
a petton fed under Artce 32, even wthout a
presdenta order, f there s unexpaned, ong and
nordnate deay n executon of death sentence, the
grevance of the convct can be consdered by ths Court.
32) Ths Court s conscous of the fact, namey, whe
Artce 21 s the paramount prncpe on whch rghts of the
convcts are based, t must be consdered aong wth the
rghts of the vctms or the deceaseds famy as aso
soceta consderaton snce these eements form part of
the sentencng process as we. The rght of a vctm to a
far nvestgaton under Artce 21 has been recognzed n
State of 3est +en!al vs. /ommittee for Demo,rati,
Ri!hts( 3est +en!al( (2010) 3 SCC 571, whch s as
under:
:6!. Thus, havng examned the rva contentons n the
context of the consttutona scheme, we concude as
foows:
(i) The fundamenta rghts, enshrned n Part III of the
Consttuton, are nherent and cannot be extngushed
by any consttutona or statutory provson. Any aw
that abrogates or abrdges such rghts woud be
voatve of the basc structure doctrne. The actua
effect and mpact of the aw on the rghts guaranteed
under Part III has to be taken nto account n
determnng whether or not t destroys the basc
structure.
(ii) Artce 21 of the Consttuton n ts broad
perspectve seeks to protect the persons of ther ves
26
Page 27
and persona bertes except accordng to the
procedure estabshed by aw. The sad artce n ts
broad appcaton not ony takes wthn ts fod
enforcement of the rghts of an accused but aso the
rghts of the vctm. The State has a duty to enforce the
human rghts of a ctzen provdng for far and mparta
nvestgaton aganst any person accused of commsson
of a cognzabe offence, whch may ncude ts own
offcers. In certan stuatons even a wtness to the crme
may seek for and sha be granted protecton by the
State."
We do comprehend the crtca facet nvoved n the
arguments by both the sdes and we w strve to strke a
baance between the rghts of the accused as we as of
the vctm whe decdng the gven case.
33) Ths s not the frst tme when the queston of such a
nature s rased before ths Court. In )di!a Anamma vs.
State of A.".( 1974(4) SCC 443 Krshna Iyer, |. spoke of
the %$rooding horror of haunting the #risoner in the
condemned cell for &ears'. Chnnappa Reddy, |. n
Vatheeswaran -supra. sad that proonged deay n
executon of a sentence of death had a dehumanzng
effect and ths had the consttutona mpcaton of
deprvng a person of hs fe n an un|ust, unfar and
unreasonabe way so as to offend the fundamenta rght
under Artce 21 of the Consttuton. Chnnappa Reddy, |.
27
Page 28
quoted the Prvy Councs observaton n a case of such an
nordnate deay n executon, vz., %(he anguish of
alternating ho#e and des#air the agon& of uncertaint& and
the conse)uences of such suffering on the mental,
emotional and #h&sical integrit& and health of the
indi*idual has to $e seen.' Thereby, a Bench of two |udges
of ths Court hed that the deay of two years n executon
of the sentence after the |udgment of the tra court w
entte the condemned prsoner to pead for commutaton
of sentence of death to mprsonment for fe.
Subsequenty, n Sher Sin!h -supra., whch was a
decson of a Bench of three |udges, t was hed that a
condemned prsoner has a rght of far procedure at a
stages, tra, sentence and ncarceraton but deay aone s
not good enough for commutaton and two years rue
coud not be ad down n cases of deay.
34) Owng to the confct n the two decsons, the matter
was referred to a Consttuton Bench of ths Court for
decdng the two questons of aw vz., () whether the
deay n executon tsef w be a ground for commutaton
of sentence and () whether two years deay n executon
28
Page 29
w automatcay entte the condemned prsoner for
commutaton of sentence. In Smt. Triveni$en vs. State
of %u#arat (1988) 4 SCC 574, ths Court hed thus:
"2. ...Undue ong deay n executon of the sentence of
death w entte the condemned person to approach
ths Court under Artce 32 but ths Court w ony
examne the nature of deay caused and crcumstances
that ensued after sentence was fnay confrmed by the
|udca process and w have no |ursdcton to re-open
the concusons reached by the court whe fnay
mantanng the sentence of death. Ths Court,
however, may consder the queston of nordnate deay
n the ght of a crcumstances of the case to decde
whether the executon of sentence shoud be carred out
or shoud be atered nto mprsonment for fe. No fxed
perod of deay coud be hed to make the sentence of
death nexecutabe and to ths extent the decson n
Vatheeswaran case cannot be sad to ay down the
correct aw and therefore to that extent stands
overrued."
35) Whe gvng fu reasons whch s reported n Smt.
Triveni$en vs. State of %u#arat( (1989) 1 SCC 678 ths
Court, n para 22, apprecated the aspect of deay n
executon n the foowng words:-
:22. It was contended that the deay n executon of the
sentence w entte a prsoner to approach ths Court as
hs rght under Artce 21 s beng nfrnged. It s we
setted now that a |udgment of court can never be
chaenged under Artce 14 or 21 and therefore the
|udgment of the court awardng the sentence of death s
not open to chaenge as voatng Artce 14 or Artce 21
as has been ad down by ths Court n +aresh Shridhar
!irajkar v. State of !aharashtra and aso n A.". Antula&
v. ".S. +a&ak the ony |ursdcton whch coud be sought
to be exercsed by a prsoner for nfrngement of hs
rghts can be to chaenge the subsequent events after
the fna |udca verdct s pronounced and t s because
of ths that on the ground of ong or nordnate deay a
29
Page 30
condemned prsoner coud approach ths Court and that
s what has consstenty been hed by ths Court. But t
w not be open to ths Court n exercse of |ursdcton
under Artce 32 to go behnd or to examne the fna
verdct reached by a competent court convctng and
sentencng the condemned prsoner and even whe
consderng the crcumstances n order to reach a
concuson as to whether the nordnate deay couped
wth subsequent crcumstances coud be hed to be
suffcent for comng to a concuson that executon of
the sentence of death w not be |ust and proper. The
nature of the offence, crcumstances n whch the
offence was commtted w have to be taken as found
by the competent court whe fnay passng the verdct.
It may aso be open to the court to examne or consder
any crcumstances after the fna verdct was
pronounced f t s consdered reevant. The queston of
mprovement n the conduct of the prsoner after the
fna verdct aso cannot be consdered for comng to the
concuson whether the sentence coud be atered on
that ground aso."
36) Though earned counse appearng for the Unon of
Inda reed on certan observatons of Shetty, |. who
devered concurrng |udgment, partcuary, para 76,
hodng that "the inordinate dela&, ma& $e a significant
factor, $ut that $& itself cannot render the e,ecution
unconstitutional', after carefu readng of the ma|orty
|udgment authored by Oza, |., partcuary, para 2 of the
order dated 11.10.1988 and para 22 of the subsequent
order dated 07.02.1989, we re|ect the sad stand taken by
earned counse for the Unon of Inda.
37) In Vatheeswaran -supra., the dssentng opnon of
30
Page 31
the two |udges n the Prvy Counc case, reed upon by
ths Court, was subsequenty accepted as the correct aw
by the Prvy Counc n )arl "ratt vs. A% for 2amai,a
|1994| 2 AC 1 - Prvy Counc, after 22 years. There s no
doubt that |udgments of the Prvy Counc have certany
receved the same respectfu consderaton as the
|udgments of ths Court. For carty, we reterate that
except the rato reatng to deay exceedng two years n
executon of sentence of death, a other propostons are
acceptabe, n fact, foowed n subsequent decsons and
shoud be consdered suffcent to entte the person under
sentence of death to nvoke Artce 21 and pead for
commutaton of the sentence.
38) In vew of the above, we hod that undue ong deay
n executon of sentence of death w entte the
condemned prsoner to approach ths Court under Artce
32. However, ths Court w ony examne the
crcumstances surroundng the deay that has occurred
and those that have ensued after sentence was fnay
confrmed by the |udca process. Ths Court cannot
reopen the concuson aready reached but may consder
31
Page 32
the queston of nordnate deay to decde whether the
executon of sentence shoud be carred out or shoud be
atered nto mprsonment for fe.
39) Keepng a convct n suspense whe consderaton of
hs mercy petton by the Presdent for many years s
certany an agony for hm/her. It creates adverse physca
condtons and psychoogca stresses on the convct under
sentence of death. Indsputaby, ths Court, whe
consderng the re|ecton of the cemency petton by the
Presdent, under Artce 32 read wth Artce 21 of the
Consttuton, cannot excuse the agonzng deay caused to
the convct ony on the bass of the gravty of the crme.
40) Inda has been a sgnatory to the Unversa
Decaraton of Human Rghts, 1948 as we as to the
Unted Natons Covenant on Cv and Potca Rghts,
1966. Both these conventons contan provsons
outawng crue and degradng treatment and/or
punshment. Pursuant to the |udgment of ths Court n
Visha*a vs. State of Ra#asthan( (1997) 6 SCC 241,
nternatona covenants to whch Inda s a party are a part
of domestc aw uness they are contrary to a specfc aw
32
Page 33
n force. It s ths expresson ("crue and degradng
treatment and/or punshment") whch has gnted the
phosophy of Vatheeswaran -supra. and the cases
whch foow t. It s n ths ght, the Indan cases,
partcuary, the eadng case of Triveni$en -supra. has
been foowed n the Commonweath countres. It s usefu
to refer the foowng foregn |udgments whch foowed
the proposton :
) )arl "ratt vs. A% for 2amai,a |1994| 2 AC 1 - Prvy
Counc
) /atholi, /ommission for 2usti,e ' "ea,e in
4im$a$we vs. Attorney %eneral, 1993 (4) S.A. 239 -
Supreme Court of Zmbabwe
) Soerin! vs. United &in!dom |App. No. 14038/88,
11 Eur. H.R. Rep. 439 (1989)| - European Court of Human
Rghts
v) Attorney %eneral vs. Susan &i!ula, Consttutona
Appea No. 3 of 2006 - Supreme Court of Uganda
v) 1erman Me#ia and i,holas %uevara vs.
Attorney %eneral, A.D. 2000 Acton No. 296 - Supreme
33
Page 34
Court of Beze.
41) It s cear that after the competon of the |udca
process, f the convct fes a mercy petton to the
Governor/Presdent, t s ncumbent on the authortes to
dspose of the same expedtousy. Though no tme mt
can be fxed for the Governor and the Presdent, t s the
duty of the executve to expedte the matter at every
stage, vz., cang for the records, orders and documents
fed n the court, preparaton of the note for approva of
the Mnster concerned, and the utmate decson of the
consttutona authortes. Ths court, n Triveni$en
-supra.( further hed that n dong so, f t s estabshed
that there was proonged deay n the executon of death
sentence, t s an mportant and reevant consderaton for
determnng whether the sentence shoud be aowed to be
executed or not.
42) Accordngy, f there s undue, unexpaned amd
nordnate deay n executon due to pendency of mercy
pettons or the executve as we as the consttutona
authortes have faed to take note of/consder the
reevant aspects, ths Court s we wthn ts powers under
34
Page 35
Artce 32 to hear the grevance of the convct and
commute the death sentence nto fe mprsonment on
ths ground aone however, ony after satsfyng that the
deay was not caused at the nstance of the accused
hmsef. To ths extent, the |ursprudence has deveoped
n the ght of the mandate gven n our Consttuton as
we as varous Unversa Decaratons and drectons
ssued by the Unted Natons.
43) The procedure prescrbed by aw, whch deprves a
person of hs fe and berty must be |ust, far and
reasonabe and such procedure mandates humane
condtons of detenton preventve or puntve. In ths ne,
athough the pettoners were sentenced to death based
on the procedure estabshed by aw, the nexpcabe
deay on account of executve s unexcusabe. Snce t s
we estabshed that Artce 21 of the Consttuton does
not end wth the pronouncement of sentence but extends
to the stage of executon of that sentence, as aready
asserted, proonged deay n executon of sentence of
death has a dehumanzng effect on the accused. Deay
caused by crcumstances beyond the prsoners contro
35
Page 36
mandates commutaton of death sentence. In fact, n
Vatheeswaran -supra., partcuary, n para 10, t was
eaborated where amongst other authortes, the mnorty
vew of Lords Scarman and Brghtman n the 1972 Prvy
Counc case of oel oel Riley vs. Attorney %eneral,
(1982) Cr.Law Revew 679 by quotng %sentence of death
is one thing, sentence of death followed $& length&
im#risonment #rior to e,ecution is another'. The
approprate reef n cases where the executon of death
sentence s deayed, the Court hed, s to vacate the
sentence of death. In para 13, the Court made t cear
that Artces 14, 19 and 21 suppement one another and
the rght whch was speed out from the Consttuton was
a substantve rght of the convct and not merey a matter
of procedure estabshed by aw. Ths was the
consequence of the |udgment n Mane*a %andhi vs.
Union of India (1978) 1 SCC 248 whch made the content
of Artce 21 substantve as dstngushed from merey
procedura.
44) Another argument advanced by earned ASG s that
even f the deay caused seems to be undue, the matter
36
Page 37
must be referred back to the executve and a decson
must not be taken n the |udca sde. Though we
apprecate the contenton argued by the earned ASG, we
are not ncned to accept the argument. The concept of
supervenng events emerged from the |ursprudence set
out n Vatheeswaran -supra. and Triveni$en -supra..
The word |udca revew s not even mentoned n these
|udgments and the death sentences have been commuted
purey on the bass of supervenng events such as deay.
Under the ground of supervenng events, when Artce 21
s hed to be voated, t s not a queston of |udca revew
but of protecton of fundamenta rghts and courts gve
substanta reef not merey procedura protecton. The
queston of voaton of Artce 21, ts effects and the
approprate reef s the doman of ths Court. There s no
queston of remandng the matter for consderaton
because ths Court s the custodan and enforcer of
fundamenta rghts and the fna nterpreter of the
Consttuton. Further, ths Court s best equpped to
ad|udcate the content of those rghts and ther
requrements n a partcuar fact stuaton. Ths Court has
37
Page 38
aways granted reef for voaton of fundamenta rghts
and has never remanded the matter. For exampe, n
cases of preventve detenton, voaton of free speech,
externment, refusa of passport etc., the mpugned acton
s quashed, decared ega and voatve of Artce 21, but
never remanded. It woud not be approprate to say at
ths pont that ths Court shoud not gve reef for the
voaton of Artce 21.
45) At ths |uncture, t s pertnent to refer the records of
the dsposa of mercy pettons comped by Mr. Bkram
|eet Batra and others, whch are attached as annexures n
amost a the pettons heren. At the outset, ths
document reveas that the mercy pettons were dsposed
of more expedtousy n former days than n the present
tmes. Mosty, unt 1980, the mercy pettons were
decded n mnmum of 15 days and n maxmum of 10-11
months. Thereafter, from 1980 to 1988, the tme taken n
dsposa of mercy pettons was graduay ncreased to an
average of 4 years. It s exacty at ths pont of tme, the
cases ke Vatheeswaran -supra. and Triveni$en
-supra. were decded whch gave way for deveopng the
38
Page 39
|ursprudence of commutng the death sentence based on
undue deay. It s aso pertnent to menton that ths Court
has observed n these cases that when such pettons
under Artce 72 or 161 are receved by the authortes
concerned, t s expected that these pettons sha be
dsposed of expedtousy. In Sher Sin!h -supra. ther
Lordshps have aso mpressed the Government of Inda
and a the State Governments for speedy dsposa of
pettons fed under Artces 72 and 161 and ssued
drectons n the foowng manner:
:23. We must take ths opportunty to mpress upon the
Government of Inda and the State Governments that
pettons fed under Artces 72 and 161 of the
Consttuton or under Sectons 432 and 433 of the
Crmna Procedure Code must be dsposed of
expedtousy. A self5imposed rule should $e
followed $y the e6e,utive authorities ri!orously(
that every su,h petition shall $e disposed of
within a period of three months from the date on
whi,h it is re,eived. Long and ntermnabe deays n
the dsposa of these pettons are a serous hurde n
the dspensaton of |ustce and ndeed, such deays tend
to shake the confdence of the peope n the very
system of |ustce.
46) Obvousy, the mercy pettons dsposed of from 1989
to 1997 wtnessed the mpact of the observatons n the
dsposa of mercy pettons. Snce the average tme taken
for decdng the mercy pettons durng ths perod was
39
Page 40
brought down to an average of 5 months from 4 years
thereby payng due regard to the observatons made n
the decsons of ths Court, but unfortunatey, now the
hstory seems to be repeatng tsef as now the deay of
maxmum 12 years s seen n dsposng of the mercy
pettons under Artce 72/161 of the Consttuton.
47) We sncerey hope and beeve that the mercy
pettons under Artce 72/161 can be dsposed of at a
much faster pace than what s adopted now, f the due
procedure prescrbed by aw s foowed n verbatm.
Athough, no tme frame can be set for the Presdent for
dsposa of the mercy petton but we can certany request
the concerned Mnstry to foow ts own rues rgorousy
whch can reduce, to a arge extent, the deay caused.
48) Though gudenes to defne the contours of the
power under Artce 72/161 cannot be ad down, however,
the Unon Government, consderng the nature of the
power, set out certan crtera n the form of crcuar as
under for decdng the mercy pettons.
Personaty of the accused (such as age, sex or
40
Page 41
menta defcency) or crcumstances of the case
(such as provocaton or smar |ustfcaton);
Cases n whch the appeate Court expressed doubt
as to the reabty of evdence but has nevertheess
decded on convcton;
Cases where t s aeged that fresh evdence s
obtanabe many wth a vew to see whether fresh
enqury s |ustfed;
Where the Hgh Court on appea reversed acqutta or
on an appea enhanced the sentence;
Is there any dfference of opnon n the Bench of
Hgh Court |udges necesstatng reference to a arger
Bench;
Consderaton of evdence n fxaton of responsbty
n gang murder case;
Long deays n nvestgaton and tra etc.
49) These gudenes and the scope of the power set out
above make t cear that t s an extraordnary power not
mted by |udca determnaton of the case and s not to
41
Page 42
be exercsed ghty or as a matter of course. We aso
suggest, n vew of the |ursprudenta deveopment wth
regard to deay n executon, another crtera may be
added so as to requre consderaton of the deay that may
have occurred n dsposa of a mercy petton. In ths way,
the consttutona authortes are made aware of the deay
caused at ther end whch aspect has to be consdered
whe arrvng at a decson n the mercy petton. The
obgaton to do so can aso be read from the fact that, as
observed by the Consttuton Bench n Triveni$en
-supra., deays n the |udca process are accounted for n
the fna verdct of the Court termnatng the |udca
exercse.
50) Another vta aspect, wthout menton of whch the
present dscusson w not be compete, s that, as
aforesad, Artce 21 s the paramount prncpe on whch
rghts of the convct are based, ths must be consdered
aong wth the rghts of the vctms or the deceaseds
famy as aso soceta consderaton snce these eements
form part of the sentencng process as we. It s the stand
of the respondents that the commutaton of sentence of
42
Page 43
death based on deay aone w be aganst the vctms
nterest.
51) It s true that the queston of sentence aways poses
a compex probem, whch requres a workng compromse
between the competng vews based on reformatve,
deterrent and retrbutve theores of punshments. As a
consequence, a arge number of factors fa for
consderaton n determnng the approprate sentence.
The ob|ect of punshment s ucdy eaborated n Ram
arain vs. State of Uttar "radesh (1973) 2 SCC 86 n
the foowng words:-
"!. .the broad ob|ect of punshment of an accused found
guty n progressve cvzed socetes s to mpress on the
guty party that commsson of crmes does not pay and that
t s both aganst hs ndvdua nterest and aso aganst the
arger nterest of the socety to whch he beongs. The
sentence to be approprate shoud, therefore, be nether too
harsh nor too enent...."
52) The ob|ect of punshment has been succncty stated
n 1als$ury7s Laws of )n!land( (4
th
Edton: Vo. II: para
482) thus:
"The ams of punshment are now consdered to be
retrbuton, |ustce, deterrence, reformaton and protecton
and modern sentencng pocy refects a combnaton of
severa or a of these ams. The retrbutve eement s
43
Page 44
ntended to show pubc revuson to the offence and to
punsh the offender for hs wrong conduct. The concept of
|ustce as an am of punshment means both that the
punshment shoud ft the offence and aso that ke offences
shoud receve smar punshments. An ncreasngy
mportant aspect of punshment s deterrence and
sentences are amed at deterrng not ony the actua
offender from further offences but aso potenta offenders
from breakng the aw. The mportance of reformaton of the
offender s shown by the growng emphass ad upon t by
much modern egsaton, but |udca opnon towards ths
partcuar am s vared and rehabtaton w not usuay be
accorded precedence over deterrence. The man am of
punshment n |udca thought, however, s st the
protecton of socety and the other ob|ects frequenty
receve ony secondary consderaton when sentences are
beng decded."
53) A these aspects were emphatcay consdered by
ths Court whe pronouncng the fna verdct aganst the
pettoners heren thereby uphodng the sentence of
death mposed by the Hgh Court. Nevertheess, the same
accused (pettoners heren) are before us now under
Artce 32 petton seekng commutaton of sentence on
the bass of undue deay caused n executon of ther
eved death sentence, whch amounts to torture and
henceforth voatve of Artce 21 of the Consttuton. We
must ceary see the dstncton under both crcumstances.
Under the former scenaro, the pettoners heren were the
persons who were accused of the offence wheren the
sentence of death was mposed but n ater scenaro, the
44
Page 45
pettoners heren approached ths Court as a vctm of
voaton of guaranteed fundamenta rghts under the
Consttuton seekng commutaton of sentence. Ths
dstncton must be consdered and apprecated.
54) As aready asserted, ths Court has no |ursdcton
under Artce 32 to reopen the case on merts. Therefore,
n the ght of the aforesad eaborate dscusson, we are of
the cogent vew that undue, nordnate and unreasonabe
deay n executon of death sentence does certany
attrbute to torture whch ndeed s n voaton of Artce
21 and thereby entas as the ground for commutaton of
sentence. However, the nature of deay .e. whether t s
undue or unreasonabe must be apprecated based on the
facts of ndvdua cases and no exhaustve gudenes can
be framed n ths regard.
R#$'/+#-'$. /0 D'&$'+62'&%'+6 ,1$511+ I+7'#+ P1+#-
C/71* 1!60 A+7 T133/3'&$ #+7 D'&324$'(1 A8$'('$'1&
(P31(1+$'/+) A8$ O001+81& 0/3 S1+$1+8'+6 P234/&1
55) In Wrt Petton No. 34 of 2013 - the accused were
mucted wth TADA charges whch utmatey ended n
death sentence. Mr. Ram |ethmaan, earned senor
counse for the pettoners n that wrt petton argued
45
Page 46
aganst the rato ad down n Devender "al Sin!h
+hullar *s. State -/T. of Delhi (2013) 6 SCC 195
whch hods that when the accused are convcted under
TADA, there s no queston of showng any sympathy or
consderng supervenng crcumstances for commutaton
of sentence, and emphaszed the need for reconsderaton
of the verdct. Accordng to Mr. Ram |ethmaan,
Devender "al Sin!h +hullar -supra. s #er incuriam
and s not a bndng decson for other cases. He aso
prayed that nasmuch as the rato ad down n Devender
"al Sin!h +hullar -supra. s erroneous, ths Court, beng
a arger Bench, must overrue the same.
56) He ponted out that deay n executon of sentence of
death after t has become fna at the end of the |udca
process s whoy unconsttutona nasmuch t consttutes
torture, deprvaton of berty and detenton n custody not
authorzed by aw wthn the meanng of Artce 21 of the
Consttuton. He further ponted out that ths nvountary
detenton of the convct s an acton not authorzed by any
pena provson ncudng Secton 302 IPC or any other aw
ncudng TADA. On the other hand, Mr. Luthra, earned
46
Page 47
ASG heavy reyng on the reasonngs n Devender "al
Sin!h +hullar -supra. submtted that nasmuch as the
crme nvoved s a serous and henous and the accused
were charged under TADA, there cannot be any sympathy
or enency even on the ground of deay n dsposa of
mercy petton. Accordng to hm, consderng the gravty
of the crme, death sentence s warranted and Devender
"al Sin!h +hullar -supra. has correcty arrved at a
concuson and re|ected the cam for commutaton on the
ground of deay.
57) From the anayss of the arguments of both the
counse, we are of the vew that ony deay whch coud
not have been avoded even f the matter was proceeded
wth a sense of urgency or was caused n essenta
preparatons for executon of sentence may be the
reevant factors under such pettons n Artce 32.
Consderatons such as the gravty of the crme,
extraordnary cruety nvoved theren or some horrbe
consequences for socety caused by the offence are not
reevant after the Consttuton Bench rued n +a,han
Sin!h vs. State of "un#a$ (1980) 2 SCC 684 that the
47
Page 48
sentence of death can ony be mposed n the rarest of
rare cases. Meanng, of course, a death sentences
mposed are mpedy the most henous and barbarc and
rarest of ts knd. The ega effect of the extraordnary
depravty of the offence exhausts tsef when court
sentences the person to death for that offence. Law does
not prescrbe an addtona perod of mprsonment n
addton to the sentence of death for any such exceptona
depravty nvoved n the offence.
58) As rghty ponted out by Mr. Ram |ethmaan, t s
open to the egsature n ts wsdom to decde by enactng
an approprate aw that a certan fxed perod of
mprsonment n addton to the sentence of death can be
mposed n some we defned cases but the resut cannot
be accompshed by a |udca decson aone. The
unconsttutonaty of ths addtona ncarceraton s tsef
nexorabe and must not be treated as dspensabe
through a |udca decson.
59) Now, n ths background, et us consder the rato ad
down n Devender "al Sin!h +hullar -supra..
48
Page 49
60) The bref facts of that case were: Devender Pa Sngh
Bhuar, who was convcted by the Desgnated Court at
Deh for varous offences under TADA, IPC and was found
guty and sentenced to death. The appea as we as the
revew fed by hm was dsmssed by ths Court. Soon
after the dsmssa of the revew petton, Bhuar
submtted a mercy petton dated 14.01.2003 to the
Presdent of Inda under Artce 72 of the Consttuton and
prayed for commutaton of hs sentence. Varous other
assocatons ncudng Deh Skh Gurdwara Management
Commttee sent etters n connecton wth commutaton of
the death sentence awarded to hm. Durng the pendency
of the petton fed under Artce 72, he aso fed Curatve
Petton (Crmna) No. 5 of 2013 whch was aso dsmssed
by ths Court on 12.03.2013. After proonged
correspondence and based on the advce of the Home
Mnster, the Presdent re|ected hs mercy petton whch
was nformed vde etter dated 13.06.2011 sent by the
Deputy Secretary (Home) to the |a Authortes. After
re|ecton of hs petton by the Presdent, Bhuar fed a
wrt petton, under Artce 32 of the Consttuton, n ths
49
Page 50
regard prayng for quashng the communcaton dated
13.06.2011. Whe ssung notce n Wrt Petton
(Crmna) Dary No. 16039/2011, ths Court drected the
respondents to carfy as to why the pettons made by the
pettoner had not been dsposed of for the ast 8 years. In
compance wth the courts drecton, the Deputy
Secretary (Home) fed an affdavt gvng reasons for the
deay. Ths Court, after advertng to a the earer
decsons, nstructons regardng procedure to be observed
for deang wth the pettons for mercy, accepted that
there was a deay of 8 years. Even after acceptng that
ong deay may be one of the grounds for commutaton of
sentence of death nto fe mprsonment, ths Court
dsmssed hs wrt petton on the ground that the same
cannot be nvoked n cases where a person s convcted
for an offence under TADA or smar statutes. Ths Court
aso hed that such cases stand on an atogether dfferent
footng and cannot be compared wth murders commtted
due to persona anmosty or over property and persona
dsputes. It s aso reevant to pont out that whe arrvng
at such concuson, the Bench heavy reed on opnon
50
Page 51
expressed by Shetty, |. n Smt. Triveni$en -supra..
Though the Bench adverted to paras 73, 74, 75 and 76 of
Triveni$en -supra., the Court very much emphaszed
para 76 whch reads as under:-
%89. . The court whe examnng the matter, for the
reasons aready stated, cannot take nto account the
tme utsed n the |udca proceedngs up to the fna
verdct. The court aso cannot take nto consderaton
the tme taken for dsposa of any petton fed by or on
behaf of the accused ether under Artce 226 or under
Artce 32 of the Consttuton after the fna |udgment
affrmng the convcton and sentence. The court may
ony consder whether there was undue ong deay n
dsposng of mercy petton; whether the State was
guty of datory conduct and whether the deay was for
no reason at a. The inordinate delay( may $e a
si!nifi,ant fa,tor( $ut that $y itself ,annot render
the e6e,ution un,onstitutional. or it ,an $e
divor,ed from the dastardly and dia$oli,al
,ir,umstan,es of the ,rime itself=> (emphass
supped)
61) On gong through the |udgment of Oza, |. on hs
behaf and for M.M. Dutt, K.N. Sngh and L.M. Sharma, ||.,
we are of the vew that the above quoted statement of
Shetty, |. s not a ma|orty vew and at the most ths s a
vew expressed by hm aone. In ths regard, at the cost of
repetton t s reevant to refer once agan the operatve
porton of the order dated 11.10.1988 n Triveni$en
-supra. whch s as under:-
"2. We are of the opnon that:
Undue ong deay n executon of the sentence of death
51
Page 52
w entte the condemned person to approach ths
Court under Artce 32 but ths Court w ony examne
the nature of deay caused and crcumstances that
ensued after sentence was fnay confrmed by the
|udca process and w have no |ursdcton to re-open
the concusons reached by the court whe fnay
mantanng the sentence of death. Ths Court,
however, may consder the queston of nordnate deay
n the ght of a crcumstances of the case to decde
whether the executon of sentence shoud be carred out
or shoud be atered nto mprsonment for fe. No fxed
perod of deay coud be hed to make the sentence of
death nexecutabe and to ths extent the decson n
Vatheeswaran case cannot be sad to ay down the
correct aw and therefore to that extent stands
overrued."
62) The same vew was once agan reterated by a the
|udges and the very same reasonngs have been
reterated n Para 23 of the order dated 07.02.1989. In
such crcumstances and aso n vew of the categorca
opnon of Oza, |. n para 22 of the |udgment n
Triveni$en -supra. that "it will not $e o#en to this -ourt
in e,ercise of jurisdiction under Article ./ to go $ehind or
to e,amine the final *erdict0the nature of the offence,
circumstances in which the offence was committed will
ha*e to $e taken as found $& the com#etent court0", t
cannot be hed, as urged, on behaf of the Unon of Inda
that the ma|orty opnon n Triveni$en -supra. s to the
effect that deay s ony one of the crcumstances that may
be consdered aong wth "other crcumstances of the
52
Page 53
case" to determne as to whether the death sentence
shoud be commuted to one of fe mprsonment. We are,
therefore, of the vew that the opnon rendered by Shetty,
|. as quoted n para 76 of the |udgment n Triveni$en
-supra. s a mnorty vew and not a vew consstent wth
what has been contended to be the ma|orty opnon. We
reterate that as per the ma|orty vew, f there s undue
ong deay n executon of sentence of death, the
condemned prsoner s entted to approach ths Court
under Artce 32 and the court s bound to examne the
nature of deay caused and crcumstances that ensued
after sentence was fnay confrmed by the |udca
process and to take a decson whether executon of
sentence shoud be carred out or shoud be atered nto
mprsonment for fe. It s, however, true that the ma|orty
of the |udges have not approved the fxed perod of two
years enuncated n Vatheeswaran -supra. and ony to
that extent overrued the same.
63) Incdentay, t s reevant to pont out Mahendra
ath Das vs. Union of India and Ors. (2013) 6 SCC
253, wheren the very same bench, takng note of the fact
53
Page 54
that there was a deay of 12 years n the dsposa of the
mercy petton and aso consderng the fact that the
appeants theren were prosecuted and convcted under
Secton 302 IPC hed the re|ecton of the appeants mercy
petton as ega and consequenty, the sentence of death
awarded to them by the tra Court whch was confrmed
by the Hgh Court, commuted nto fe mprsonment.
64) In the ght of the same, we are of the vew that the
rato ad down n Devender "al Sin!h +hullar -supra.
s #er incuriam. There s no dspute that n the same
decson ths Court has accepted the rato enuncated n
Triveni$en -supra. (Consttuton Bench) and aso noted
some other |udgments foowng the rato ad down n
those cases that unexpaned ong deay may be one of
the grounds for commutaton of sentence of death nto fe
mprsonment. There s no good reason to dsquafy a
TADA cases as a cass from reef on account of deay n
executon of death sentence. Each case requres
consderaton on ts own facts.
65) It s usefu to refer a Consttuton Bench decson of
ths Court n Mithu vs. State of "un#a$ (1983) 2 SCC
54
Page 55
277, wheren ths Court hed Secton 303 of the IPC as
unconsttutona and decared t vod. The queston before
the Consttuton Bench was whether Secton 303 of IPC
nfrnges the guarantee contaned n Artce 21 of the
Consttuton, whch provdes that "no person sha be
deprved of hs fe or persona berty except accordng to
the procedure estabshed by aw". Chandrachud, |. the
then Honbe the Chef |ustce, speakng for hmsef, Faza
A, Tuzapurkar and Varadara|an, ||., struck down Secton
303 IPC as unconsttutona and decared t vod. The
Bench aso hed that a the cases of murder w now fa
under Secton 302 IPC and there sha be no mandatory
sentence of death for the offence of murder. The reasons
gven by ths Court for strkng down ths aforesad secton
w come n ad for ths case. Secton 303 IPC was as
under:
"303. P2+'&%)1+$ 0/3 )23713 ,. -'01 8/+('8$.-
Whoever, beng under sentence of mprsonment for fe,
commts murder, sha be punshed wth death."
66) Before strkng down Secton 303 IPC, ths Court
made the foowng concuson:
"3.The reason, or at east one of the reasons, why the
55
Page 56
dscreton of the court to mpose a esser sentence was
taken away and the sentence of death was made
mandatory n cases whch are covered by Secton 303
seems to have been that f, even the sentence of fe
mprsonment was not suffcent to act as a deterrent
and the convct was hardened enough to commt a
murder whe servng that sentence, the ony
punshment whch he deserved was death. The severty
of ths egsatve |udgment accorded wth the deterrent
and retrbutve theores of punshment whch then hed
sway. The reformatve theory of punshment attracted
the attenton of crmnoogsts ater n the day.
5.The sum and substance of the argument s that the
provson contaned n Secton 303 s whoy
unreasonabe and arbtrary and thereby, t voates
Artce 21 of the Consttuton whch affords the
guarantee that no person sha be deprved of hs fe or
persona berty except n accordance wth the
procedure estabshed by aw. Snce the procedure by
whch Secton 303 authorses the deprvaton of fe s
unfar and un|ust, the Secton s unconsttutona. Havng
examned ths argument wth care and concern, we are
of the opnon that t must be accepted and Secton 303
of the Pena Code struck down."
67) After quotng Mane*a %andhi -supra., Sunil +atra
vs. Delhi Administration (1978) 4 SCC 494 and +a,han
Sin!h -supra., ths Court opned:
"1.To prescrbe a mandatory sentence of death for
the second of such offences for the reason that the
offender was under the sentence of fe mprsonment
for the frst of such offences s arbtrary beyond the
bounds of a reason. Assumng that Secton 235(2) of
the Crmna Procedure Code were appcabe to the case
and the court was under an obgaton to hear the
accused on the queston of sentence, t woud have to
put some such queston to the accused:
"You were sentenced to fe mprsonment for the
offence of forgery. You have commtted a murder whe
you were under that sentence of fe mprsonment. Why
shoud you not be sentenced to death"
56
Page 57
The queston carres ts own refutaton. It hghghts how
arbtrary and rratona t s to provde for a mandatory
sentence of death n such crcumstances."
23. On a consderaton of the varous crcumstances
whch we have mentoned n ths |udgment, we are of
the opnon that Secton 303 of the Pena Code voates
the guarantee of equaty contaned n Artce 14 as aso
the rght conferred by Artce 21 of the Consttuton that
no person sha be deprved of hs fe or persona berty
except accordng to procedure estabshed by aw. The
secton was orgnay conceved to dscourage assauts
by fe convcts on the prson staff, but the egsature
chose anguage whch far exceeded ts ntenton. The
Secton aso assumes that fe convcts are a dangerous
breed of humanty as a cass. That assumpton s not
supported by any scentfc data. As observed by the
Roya Commsson n ts Report on "Capta Punshment"
"There s a popuar beef that prsoners servng a fe
sentence after convcton of murder form a specay
troubesome and dangerous cass. That s not so. Most
fnd themseves n prson because they have yeded to
temptaton under the pressure of a combnaton of
crcumstances unkey to recur."
In Dp Kumar Sharma v. State of M.P. ths Court was
not concerned wth the queston of the vres of Secton
303, but Sarkara, |., n hs concurrng |udgment,
descrbed the vast sweep of that Secton by sayng that
"the secton s Draconan n severty, reentess and
nexorabe n operaton" |SCC para 22, p. 567: SCC (Cr)
p. 92|. We strke down Secton 303 of the Pena Code as
unconsttutona and decare t vod. It s needess to add
that a cases of murder w now fa under Secton 302
of the Pena Code and there sha be no mandatory
sentence of death for the offence of murder."
68) Chnnappa Reddy, |., concurrng wth the above vew,
hed thus:
"25. |udged n the ght shed by Maneka Gandh and
Bachan Sngh, t s mpossbe to uphod Secton 303 as
vad. S18$'/+ 303 1;8-271& ?27'8'#- 7'&831$'/+. T%1
&8#-1& /0 ?2&$'81 #31 31)/(17 03/) $%1 %#+7& /0
$%1 J2761 &/ &//+ #& %1 43/+/2+81& $%1 #882&17
62'-$. /0 $%1 /001+81. S/ 0'+#-* &/ '331(/8#,-1 #+7
57
Page 58
&/ '331&$'$2$#,-1 @&'8 '331&2&8'$#,-1< '& $%1
&1+$1+81 /0 71#$% $%#$ +/ -#5 5%'8% 43/('71& 0/3
'$ 5'$%/2$ '+(/-(1)1+$ /0 $%1 ?27'8'#- )'+7 8#+ ,1
&#'7 $/ ,1 0#'3* ?2&$ #+7 31#&/+#,-1. S28% # -#5
)2&$ +181&&#3'-. ,1 &$'6)#$'&17 #& #3,'$3#3. #+7
/4431&&'(1. S18$'/+ 303 '& &28% # -#5 #+7 '$ )2&$
6/ $%1 5#. /0 #-- ,#7 -#5&. I #6311 5'$% ). L/37
C%'10 J2&$'81 $%#$ S18$'/+ 303* I+7'#+ P1+#- C/71*
)2&$ ,1 &$328A 7/5+ #& 2+8/+&$'$2$'/+#-.>
69) It s cear that snce Secton 303 IPC excudes |udca
dscreton, the Consttuton Bench has concuded that such
a aw must necessary be stgmatzed as arbtrary and
oppressve. It s further cear that no one shoud be
deprved of equaty contaned n Artce 14 as aso the
rght conferred by Artce 21 of the Consttuton regardng
hs fe or persona berty except accordng to the
procedure estabshed by aw.
70) Takng gudance from the above prncpes and n the
ght of the rato enuncated n Triveni$en -supra., we
are of the vew that unexpaned deay s one of the
grounds for commutaton of sentence of death nto fe
mprsonment and the sad supervenng crcumstance s
appcabe to a types of cases ncudng the offences
under TADA. The ony aspect the courts have to satsfy s
that the deay must be unreasonabe and unexpaned or
58
Page 59
nordnate at the hands of the executve. The argument of
Mr. Luthra, earned ASG that a dstncton can be drawn
between IPC and non-IPC offences snce the nature of the
offence s a reevant factor s abe to be re|ected at the
outset. In vew of our concuson, we are unabe to share
the vews expressed n Devender "al Sin!h +hullar
-supra..
-ii. Insanity:Mental Illness:S,hi;ophrenia
71) In ths batch of cases, two convct prsoners prayed
for commutaton of death sentence nto sentence of fe
mprsonment on the ground that the unconsconaby ong
deay n decdng the mercy petton has caused the onset
of chronc psychotc ness, and n vew of ths the
executon of death sentence w be nhuman and aganst
the we-estabshed canons of human rghts.
72) The prncpa queston rased n those pettons s
whether because of the aforementoned supervenng
events after the verdct of ths Court confrmng the death
sentence, the nfcton of the most extreme penaty n the
crcumstances of the case, voates the fundamenta rghts
59
Page 60
under Artce 21. The pettoners have made t cear that
they are not chaengng the death sentence mposed by
ths Court. However, as on date, they are sufferng from
nsanty/menta ness. In ths background, et us consder
whether the pettoners have made out a case for
commutaton to fe sentence on the ground of nsanty.
73) Inda s a member of the Unted Natons and has
ratfed the Internatona Covenant on Cv and Potca
Rghts (ICCPR). A arge number of Unted Natons
nternatona documents prohbt the executon of death
sentence on an nsane person. Cause 3(e) of the
Resolution <===:9> dated 27.04.2000 of the U..
/ommission on 1uman Ri!hts titled ?The @uestion
of Death "enalty" urges %all States that still maintain
the death #enalt&0not to im#ose the death #enalt& on a
#erson suffering from an& form of mental disorder or to
e,ecute an& such #erson'. It further eaborates:
"3. Urges a States that st mantan the death penaty:
(a) To compy fuy wth ther obgatons under the
Internatona Covenant on Cv and Potca Rghts and
the Conventon on the Rghts of the Chd, notaby not to
mpose the death penaty for any but the most serous
crmes and ony pursuant to a fna |udgement rendered
by an ndependent and mparta competent court, not
to mpose t for crmes commtted by persons beow 18
years of age, to excude pregnant women from capta
60
Page 61
punshment and to ensure the rght to a far tra and the
rght to seek pardon or commutaton of sentence;
(b) To ensure that the noton of "most serous crmes"
does not go beyond ntentona crmes wth etha or
extremey grave consequences and that the death
penaty s not mposed for non-voent fnanca crmes
or for non-voent regous practce or expresson of
conscence;
(c) Not to enter any new reservatons under artce 6 of
the Internatona Covenant on Cv and Potca Rghts
whch may be contrary to the ob|ect and the purpose of
the Covenant and to wthdraw any such exstng
reservatons, gven that artce 6 of the Covenant
enshrnes the mnmum rues for the protecton of the
rght to fe and the generay accepted standards n ths
area;
(d) To observe the Safeguards guaranteeng protecton
of the rghts of those facng the death penaty and to
compy fuy wth ther nternatona obgatons, n
partcuar wth those under the Venna Conventon on
Consuar Reatons;
(e) Not to mpose the death penaty on a person
sufferng from any form of menta dsorder or to execute
any such person;
(f) Not to execute any person as ong as any
reated ega procedure, at the nternatona or at the
natona eve, s pendng;
4. Cas upon a States that st mantan the death
penaty:
(a) Progressvey to restrct the number of offences for
whch the death penaty may be mposed;
(b) To estabsh a moratorum on executons, wth a vew
to competey aboshng the death penaty;
(c) To make avaabe to the pubc nformaton wth
regard to the mposton of the death penaty;
5. Requests States that have receved a request for
extradton on a capta charge to reserve expcty the
rght to refuse extradton n the absence of effectve
assurances from reevant authortes of the requestng
State that capta punshment w not be carred out;
6. Requests the Secretary-Genera to contnue to submt
to the Commsson on Human Rghts, at ts ffty-seventh
sesson, n consutaton wth Governments, specazed
agences and ntergovernmenta and non-governmenta
organzatons, a yeary suppement on changes n aw
and practce concernng the death penaty wordwde to
hs qunquenna report on capta punshment and
mpementaton of the Safeguards guaranteeng
61
Page 62
protecton of the rghts of those facng the death
penaty;
7. Decdes to contnue consderaton of the matter at ts
ffty-seventh sesson under the same agenda tem.
66th meetng
26 Apr 2000"
74) Smary, Cause 89 of the Report of the Spe,ial
Rapporteur on )6tra52udi,ial Summary or Ar$itrary
)6e,utions pubshed on 24.12.1996 by the UN
Commsson on Human Rghts under the capton
?Restri,tions on the use of death penaltyA states
that %the im#osition of ca#ital #unishment on mentall&
retarded or insane #ersons, #regnant women and recent
mothers is #rohi$ited'. Further, Cause 116 thereof under
the capton "Capta punshment" urges that
%1o*ernments that enforce such legislation with res#ect
to minors and the mentall& ill are #articularl& called u#on
to $ring their domestic criminal laws into conformit& with
international legal standards'.
75) Unted Natons Genera Assemby n ts Sxty-second
sesson, adopted a Resouton on 18.12.2007, whch
speaks about moratorum on the use of the death penaty.
The foowng decsons are reevant:
62
Page 63
"1. Expresses ts deep concern about the contnued
appcaton of the death penaty;
2. Cas upon a States that st mantan the death
penaty:
(a) To respect nternatona standards that provde
safeguards guaranteeng protecton of the rghts of
those facng the death penaty, n partcuar the
mnmum standards, as set out n the annex to
Economc and Soca Counc resouton 1984/50 of 25
May 1984;
*** *** ***
76th penary meetng
18 December 2007"
76) The foowng passage from the Commentary on the
Laws of Engand by Wam Backstone s reevant for our
consderaton:
".In crmna cases therefore dots and unatcs are not
chargeabe for ther own acts, f commtted when under
these ncapactes: no, not even for treason tsef. Aso,
f a man n hs sound memory commts a capta offense,
and before arragnment for t, he becomes mad, he
ought not to be arragned for t; because he s not abe
to pead to t wth that advce and cauton that he ought.
And f, after he has peaded, the prsoner becomes mad,
he sha not be tred; for how can he make hs defense?
If, after he be tred and found guty, he oses hs senses
before |udgment, |udgment sha not be pronounced;
and f, after |udgment, he becomes of nonsane memory,
executon sha be stayed: for peradventure, says the
humanty of the Engsh aw, had the prsoner been of
sound memory, he mght have aeged somethng n
stay of |udgment or executon."
77) Inda too has smar ne of aw and rues n the
respectve State |a Manuas. Paras 386 and 387 of the
U.P. |a Manua appcabe to the State of Uttarakhand are
63
Page 64
reevant for our purpose and are quoted herenbeow:
"386. Condemned convcts deveopng nsanty - W%1+
# 8/+('8$ 2+713 &1+$1+81 /0 71#$% 71(1-/4&
'+&#+'$. #0$13 8/+('8$'/+* $%1 S2413'+$1+71+$ &%#--
&$#. $%1 1;182$'/+ /0 $%1 &1+$1+81 /0 71#$% and
nform the Dstrct Magstrate, who sha submt
mmedatey a report, through the Sessons |udge, for
the orders of the State Government.
387. Postponement of executon n certan cases - The
executon of a convct under sentence of death sha not
be carred out on the date fxed f he s physcay unft
to receve the punshment, but sha not be postponed
uness the ness s both serous and acute (.e. not
chronc). A report gvng fu partcuars of the ness
necesstatng postponement of executon shoud at once
be made to the Secretary to the State Government,
|udca (A) Department for the orders of the
Government."
Smar provsons are avaabe n Prson Manuas of other
States n Inda.
78) The above materas, partcuary, the drectons of
the Unted Natons Internatona Conventons, of whch
Inda s a party, ceary show that nsanty/menta
ness/schzophrena s a cruca supervenng
crcumstance, whch shoud be consdered by ths Court n
decdng whether n the facts and crcumstances of the
case death sentence coud be commuted to fe
mprsonment. To put t cear, "nsanty" s a reevant
supervenng factor for consderaton by ths Court.
79) In addton, after t s estabshed that the death
64
Page 65
convct s nsane and t s duy certfed by the competent
doctor, undoubtedy, Artce 21 protects hm and such
person cannot be executed wthout further carfcaton
from the competent authorty about hs menta probems.
It s aso hghghted by reyng on commentares from
varous countres that cvzed countres have not
executed death penaty on an nsane person. Learned
counse aso reed on Unted Natons Resouton aganst
executon of death sentence, debate of the Genera
Assemby, the decsons of Internatona Court of |ustce,
Treates, European Conventons, 8
th
amendment n the
Unted States whch prohbts executon of death sentence
on an nsane person. In vew of the we estabshed aws
both at natona as we as nternatona sphere, we are
ncned to consder nsanty as one of the supervenng
crcumstances that warrants for commutaton of death
sentence to fe mprsonment.
(''') S/-'$#3. C/+0'+1)1+$
80) Another supervenng crcumstance, whch most of
the pettoners appeaed n ther pettons s the ground of
sotary confnement. The grevance of some of the
65
Page 66
pettoners heren s that they were confned n sotary
confnement from the date of mposton of death
sentence by the Sessons Court whch s contrary to the
provsons of the Indan Pena Code, 1860, the Code of
Crmna Procedure, 1973, Prsons Act and Artces 14, 19
and 21 of the Consttuton and t s certany a form of
torture. However, the respectve States, n ther counter
affdavts and n ora submssons, have out rghty dened
havng kept any of the pettoners heren n sotary
confnement n voaton of exstng aws. It was further
submtted that they were kept separatey from the other
prsoners for safety purposes. In other words, they were
kept n statutory segregaton and not #er se n sotary
confnement.
81) Smar ne of arguments were advanced n Sunil
+atra vs. Delhi Administration and Ors. et,. (1978) 4
SCC 494, wheren ths Court hed as under:-
"!". The propostons of aw canvassed n Batra's case
turn on what s sotary confnement as a punshment and
what s non-puntve custoda soaton of a prsoner
awatng executon. And secondy, f what s nfcted s, n
effect, 'sotary', does Secton 30(2) of the Act authorse t,
and, f t does, s such a rgorous regmen consttutona. In
one sense, these questons are pushed to the background,
because Batra's submsson s that he s not 'under
sentence of death' wthn the scope of Secton 30 unt the
66
Page 67
Supreme Court has affrmed and Presdenta mercy has
dred up by a fna 'nay'. Batra has been sentenced to
death by the Sessons Court. The sentence has snce been
confrmed, but the appea for Presdenta commutaton are
ordnary precedent to the hangmen's etha move, and
reman to be gone through. Hs contenton s that sotary
confnement s a separate substantve punshment of
maddenng severty prescrbed by Secton 73 of the Indan
Pena Code whch can be mposed ony by the Court; and
so tormentng s ths sentence that even the socay ess
senstve Pena Code of 1860 has nterposed, n ts crue
tenderness, ntervas, maxma and ke softenng features
n both Sectons 73 and 74. Such beng the pena stuaton,
t s argued that the ncarceratory nsuaton nfcted by
the Prson Superntendent on the pettoner s vrtua
sotary confnement unauthorsed by the Pena Code and,
therefore, ega. Admttedy, no sotary confnement has
been awarded to Batra. So, f he s de facto so confned t
s ega. Nor does a sentence of death under Secton 53,
I.P.C. carry wth t a suppementary secret cause of
sotary confnement. What warrant then exsts for sotary
confnement on Batra? None. The answer offered s that he
s not under sotary confnement. He s under 'statutory
confnement' under the authorty of Secton 30(2) of the
Prsons Act read wth Secton 366(2) Cr.P.C. It w be a
stutfcaton of |udca power f under guse of usng
Secton 30(2) of the Prsons Act, the Superntendent nfcts
what s substantay sotary confnement whch s a
speces of punshment excusvey wthn the |ursdcton of
the crmna court. We hod, wthout hestaton, that Sun
Batra sha not be sotary confned. Can he be segregated
from vew and voce and vsts and comngng, by resort to
Secton 30(2) of the Prsons Act and reach the same
resut ? To gve the answer we must examne the
essentas of sotary confnement to dstngush t from
beng 'confned n a ce apart from a other prsoners'.
!!. If sotary confnement s a revot aganst socety's
humane essence, there s no reason to permt the same
punshment to be smugged nto the prson system by
namng t dfferenty. Law s not a forma abe, nor
ogomachy but a workng technque of |ustce. The Pena
Code and the Crmna Procedure Code regard puntve
sotude too harsh and the Legsature cannot be ntended
to permt preventve sotary confnement, reeased even
from the restrctons of Secton 73 and 74 I.P.C., Secton 29
of the Prsons Act and the restrctve Prson Rues. It woud
be extraordnary that a far worse sotary confnement,
masked as safe custody, sans maxmum, sans
67
Page 68
ntermsson, sans |udca oversght or natura |ustce,
woud be sanctoned. Commonsense quarres wth such
nonsense.
!. For a fuer comprehenson of the ega provsons and
ther constructon we may have to quote the reevant
sectons and thereafter make a aboratory dssecton
thereof to get an understandng of the components whch
make up the egsatve sancton for sem-sotary detenton
of Shr Batra. Secton 30 of the Prsons Act rues :
30. (1) Every prsoner under sentence of death sha,
mmedatey on hs arrva n the prson after
sentence, be searched by, or by order of, the Deputy
Superntendent, and a artces sha be taken from
hm whch the Deputy Superntendent deems t
dangerous or nexpedent to eave n hs possesson.
(2) Every such prsoner, sha be confned n a ce
apart from a other prsoners, and sha be paced by
day and by nght under charge of a guard.
Ths fas n Chapter V reatng to dscpne of prsoners and
has to be read n that context. Any separate confnement
contempated n Secton 30(2) has ths dscpnary
mtaton as we w presenty see. If we pu to peces the
whoe provson t becomes cear that Secton 30 can be
apped ony to a prsoner "under sentence of death".
Secton 30(2) whch speaks of "such" prsoners necessary
reates to prsoners under sentence of death. We have to
dscover when we can desgnate a prsoner as one under
sentence of death.
0. The next attempt s to dscern the meanng of
confnement "n a ce apart from a other prsoners". The
purpose s to mantan dscpne and dscpne s to avod
dsorder, fght and other untoward ncdents, f
apprehended.
1. Confnement nsde a prson does not necessary
mport ceuar soaton. Segregaton of one person a
aone n a snge ce s sotary confnement. That s a
separate punshment whch the Court aone can mpose. It
woud be a subverson of ths statutory provson (Secton
73 and 74 I.P.C.) to mpart a meanng to Secton 30(2) of
the Prsons Act whereby a dscpnary varant of sotary
confnement can be camped down on a prsoner, athough
no court has awarded such a punshment, by a mere
constructon, whch cothes an executve offcer, who
68
Page 69
happens to be the governor of the |a, wth harsh |udca
powers to be exercsed by puntve restrctons and
unaccountabe to anyone, the power beng dscretonary
and dscpnary.
2. Indeed, n a |a, ces are ordnary occuped by more
than one nmate and communty fe nsde dormtores and
ces s common. Therefore, "to be confned n a ce" does
not compe us to the concuson that the confnement
shoud be n a sotary ce.
3. "Apart from a other prsoners" used n Secton 30(2) s
aso a phrase of fexbe mport. 'Apart' has the sense of 'To
one sde, asde,... apart from each other, separatey n
acton or functon' (Shorter Oxford Engsh Dctonary).
Segregaton nto an soated ce s not warranted by the
word. A that t connotes s that n a ce where there are a
puraty of nmates the death sentencees w have to be
kept separated from the rest n the same ce but not too
cose to the others. And ths separaton can be effectvey
acheved because the condemned prsoner w be paced
under the charge of a guard by day and by nght. The
guard w thus stand n between the severa nmates and
the condemned prsoner. Such a meanng preserves the
dscpnary purpose and avods puntve harshness.
Vewed functonay, the separaton s authorsed, not
obgated. That s to say, f dscpne needs t the authorty
sha be entted to and the prsoner sha be abe to
separate keepng wthn the same ce as expaned above.
"Sha" means, n ths dscpnary context, "sha be abe
to". If the condemned prsoner s doce and needs the
attenton of feow prsoners nothng forbds the |aor from
gvng hm that facty.
6. Sotary confnement has the severest stng and s
awardabe ony by Court. To sand a human beng, to keep
hm ncommuncado from hs feows s the story of the
Andamans under the Brtsh, of Napoeon n St. Heena !
The angush of aoneness has aready been deat wth by
me and I hod that Secton 30(2) provdes no ab for any
form of sotary or separated ceuar tenancy for the death
sentence, save to the extent ndcated.
111. In my |udgment Secton 30(2) does not vadate the
State's treatment of Batra. To argue that t s not sotary
confnement snce vstors are aowed, doctors and
offcas come and a guard stands by s not to take t out of
the category."
69
Page 70
82) It was, therefore, hed that the sotary confnement,
even f mofed and modfed margnay, s not
sanctoned by Secton 30 of the Prsons Act for prsoners
'under sentence of death'. The cruca hodng under
Secton 30(2) s that a person s not 'under sentence of
death', even f the Sessons Court has sentenced hm to
death sub|ect to confrmaton by the Hgh Court. He s not
'under sentence of death' even f the Hgh Court mposes,
by confrmaton or fresh appeate nfcton, death penaty,
so ong as an appea to the Supreme Court s key to be
or has been moved or s pendng. Even f ths Court has
awarded capta sentence, t was hed that Secton 30 does
not cover hm so ong as hs petton for mercy to the
Governor and/or to the Presdent permtted by the
Consttuton, has not been dsposed of. Of course, once
re|ected by the Governor and the Presdent, and on further
appcaton, there s no stay of executon by the
authortes, the person s under sentence of death. Durng
that nterregnum, he attracts the custoda segregaton
specfed n Secton 30(2), sub|ect to the ameoratve
meanng assgned to the provson. To be 'under sentence
70
Page 71
of death' means 'to be under a fnay executabe death
sentence'.
83) Even n Triveni$en -supra., ths Court observed
that keepng a prsoner n sotary confnement s contrary
to the rung n Sunil +atra -supra. and woud amount to
nfctng "addtona and separate" punshment not
authorzed by aw. It s competey unfortunate that
despte endurng pronouncement on |udca sde, the
actua mpementaton of the provsons s far from reaty.
We take ths occason to urge to the |a authortes to
comprehend and mpement the actua ntent of the
verdct n Sunil +atra -supra..
84) As far as ths batch of cases s concerned, we are not
ncned to nterfere on ths ground.
-iv. 2ud!ments De,lared "er In,uriam
85) Many counses, whe advertng to the cause of the
pettoners, companed that ether the tra court or the
Hgh Court reed on/adverted to certan earer decsons
whch were ether doubted or hed #er incuriam such as
Ma,hhi Sin!h vs. State of "un#a$ (1983) 3 SCC 470,
71
Page 72
Rav#i alias Ram,handra vs. State of Ra#asthan (1996)
2 SCC 175, Sushil Murmu vs. State of 2har*hand
(2004) 2 SCC 338, Dhanan#oy /hatter#ee vs. State of
3.+. (1994) 2 SCC 220, State of U.". vs. Dharmendra
Sin!h (1999) 8 SCC 325 and Sur#a Ram vs. State of
Ra#asthan (1996) 6 SCC 271. Therefore, t s the cam of
the pettoners heren that ths aspect consttutes a
supervenng crcumstance that warrants for commutaton
of sentence of death to fe mprsonment.
86) It s the stand of few of the pettoners heren that the
gudenes ssued n Ma,hhi Sin!h -supra. are contrary
to the aw ad down n +a,han Sin!h -supra..
Therefore, n three decsons, vz., Swamy
Shraddananda -<. vs. State of &arnata*a (2008) 13
SCC 767, San!eet and Another vs. State of 1aryana
(2013) 2 SCC 452 and %urvail Sin!h vs. State of
"un#a$ (2013) 2 SCC 713 the verdct pronounced by
Ma,hhi Sin!h -supra. s hed to be #er incuriam.
87) In the ght of the above stand, we carefuy
scrutnzed those decsons. Even n Ma,hhi Sin!h
-supra., paragraphs 33 to 37 ncuded certan aspects,
72
Page 73
vz., I. manner of commsson of murder; II. motve for
commsson of murder; III. ant-soca or socay abhorrent
nature of the crme; IV. magntude of crme and V.
personaty of vctm of murder. Utmatey, n paragraph
38, ths Court referred to the gudenes prescrbed n
+a,han Sin!h -supra.. In other words, Ma,hhi Sin!h
-supra.( after notng the propostons emerged from
+a,han Sin!h -supra.( consdered the ndvdua
appeas and dsposed of the same. In ths regard, t s
usefu to refer a three-|udge Bench decson of ths Court
n Swamy Shraddananda -<. -supra.. The Bench
consdered the prncpes enuncated n Ma,hhi Sin!h
-supra., +a,han Sin!h -supra. and after anayzng the
subsequent decsons, came to the concuson n
paragraph 48:
"48.It s noted above that Bachan Sngh ad down the
prncpe of the rarest of rare cases. Machh Sngh, for
practca appcaton crystased the prncpe nto fve
defnte categores of cases of murder and n dong so
aso consderaby enarged the scope for mposng death
penaty. But the unfortunate reaty s that n ater
decsons nether the rarest of rare cases prncpe nor
the Machh Sngh categores were foowed unformy
and consstenty."
88) Except the above observatons, the three-|udge
73
Page 74
Bench has nowhere dscarded Ma,hhi Sin!h -supra.. In
other words, we are of the vew that the three-|udge
Bench consdered and carfed the prncpes/gudenes n
Ma,hhi Sin!h -supra.. It s aso reed by the ma|orty n
Triveni$en -supra.. As regards other cases, n vew of
the factua poston, they must be read n consonance wth
the three-|udge Bench and the Consttuton Bench.
89) As ponted out by earned ASG for the Unon of Inda,
no decson mentoned above was found to be erroneous
or wrongy decded. However, due to varous factua
stuatons, certan decsons were carfed and not apped
to the facts of the pecuar case. In these crcumstances,
we are of the vew that there s no need to gve
mportance to the arguments reatng to #er incuriam.
-v. "ro,edural Lapses
90) The ast supervenng crcumstance averred by the
pettoners heren s the ground of procedura apses. It s
the cam of the pettoners heren that the prescrbed
procedure for dsposa of mercy pettons was not duy
foowed n these cases and the apse n foowng the
74
Page 75
prescrbed rues have caused serous n|ustce to both the
accused (the pettoners heren) and ther famy
members.
91) Mnstry of Home Affars, Government of Inda has
detaed procedure regardng handng of pettons for
mercy n death sentence cases. As per the sad
procedure, Rue I enabes a convct under sentence of
death to submt a petton for mercy wthn seven days
after and excusve of the day on whch the
Superntendent of |a nforms hm of the dsmssa by the
Supreme Court of hs appea or of hs appcaton for
speca eave to appea to the Supreme Court. Rue II
prescrbes procedure for submsson of pettons. As per
ths Rue, such pettons sha be addressed to, n the case
of States, to the Governor of the State at the frst nstance
and thereafter to the Presdent of Inda and n the case of
Unon Terrtores drecty to the Presdent of Inda. As soon
as mercy petton s receved, the executon of sentence
sha n a cases be postponed pendng recept of orders
on the same. Rue III states that the petton sha n the
frst nstance, n the case of States, be sent to the State
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Page 76
concerned for consderaton and orders of the Governor. If
after consderaton t s re|ected, t sha be forwarded to
the Secretary to the Government of Inda, Mnstry of
Home Affars. If t s decded to commute the sentence of
death, the petton addressed to the Presdent of Inda
sha be wthhed and ntmaton to that effect sha be sent
to the pettoner. Rue V states that n a cases n whch a
petton for mercy from a convct under sentence of death
s to be forwarded to the Secretary to the Government of
Inda, Mnstry of Home Affars, the Lt. Governor/Chef
Commssoner/Admnstrator or the Government of the
State concerned, as the case may be, sha forward such
petton, as expedtousy as possbe, aong wth the
records of the case and hs or ts observatons n respect
of any of the grounds urged n the petton. Rue VI
mandates that upon recept of the orders of the Presdent,
an acknowedgement sha be sent to the Secretary to the
Government of Inda, Mnstry of Home Affars,
mmedatey n the manner prescrbed. In the case of
Assam and Andaman and Ncobar Isands, a orders w be
communcated by teegraph and the recept thereof sha
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Page 77
be acknowedged by teegraph. In the case of other
States and Unon Terrtores, f the petton s re|ected, the
orders w be communcated by express etter and recept
thereof sha be acknowedged by express etter. Orders
commutng the death sentence w be communcated by
express etters, n the case of Deh and by teegraph n a
other cases and recept thereof sha be acknowedged by
express etter or teegraph, as the case may be. Rue
VIII(a) enabes the convct that f there s a change of
crcumstance or f any new matera s avaabe n respect
of re|ecton of hs earer mercy petton, he s free to make
fresh appcaton to the Presdent for reconsderaton of
the earer order.
92) Specfc nstructons reatng to the dutes of
Superntendents of |a n connecton wth the pettons for
mercy for or on behaf of the convcts under sentence of
death have been ssued. Rue I mandates that
mmedatey on recept of warrant of executon,
consequent on the confrmaton by the Hgh Court of the
sentence of death, the |a Superntendent sha nform the
convct concerned that f he wshes to appea to the
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Page 78
Supreme Court or to make an appcaton for speca eave
to appea to the Supreme Court under any of the reevant
provsons of the Consttuton of Inda, he/she shoud do so
wthn the perod prescrbed n the Supreme Court Rues.
Rue II makes t cear that, on recept of the ntmaton of
the dsmssa by the Supreme Court of the appea or the
appcaton for speca eave to appea fed by or on behaf
of the convct, n case the convct concerned has made no
prevous petton for mercy, the |a Superntendent sha
forthwth nform hm that f he desres to submt a petton
for mercy, t shoud be submtted n wrtng wthn seven
days of the date of such ntmaton. Rue III says that f the
convct submts a petton wthn the perod of seven days
prescrbed by Rue II, t shoud be addressed, n the case
of States, to the Governor of the State at the frst nstance
and, thereafter, to the Presdent of Inda and n the case of
Unon Terrtores, to the Presdent of Inda. The
Superntendent of |a sha forthwth dspatch t to the
Secretary to the State Government n the Department
concerned or the Lt. Governor/Chef
Commssoner/Admnstrator, as the case may be, together
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Page 79
wth a coverng etter reportng the date fxed for
executon and sha certfy that the executon has been
stayed pendng recept of orders of the Government on
the petton. Rue IV mandates that f the convct submts
petton after the perod prescrbed by Rue II, the
Superntendent of |a sha, at once, forward t to the State
Government and at the same tme teegraphed the
substance of t requestng orders whether executon
shoud be postponed statng that pendng repy sentence
w not be carred out.
93) The above Rues make t cear that at every stage the
matter has to be expedted and there cannot be any deay
at the nstance of the offcers, partcuary, the
Superntendent of |a, n vew of the anguage used
theren as "at once".
94) Apart from the above Rues regardng presentaton of
mercy pettons and dsposa thereof, necessary
nstructons have been ssued for preparaton of note to be
approved by the Home Mnster and for passng
approprate orders by the Presdent of Inda.
79
Page 80
95) Extracts from Prson Manuas of varous States
appcabe for the dsposa of mercy pettons have been
paced before us. Every State has separate Prson Manua
whch speaks about detaed procedure, recept pacng
requred materas for approva of the Home Mnster and
the Presdent for takng decson expedtousy. Rues aso
provde steps to be taken by the Superntendent of |a
after the recept of mercy petton and subsequent acton
after dsposa of the same by the Presdent of Inda.
Amost a the Rues prescrbe how the death convcts are
to be treated t fna decson s taken by the Presdent of
Inda.
96) The eaborate procedure ceary shows that even
death convcts have to be treated fary n the ght of
Artce 21 of the Consttuton of Inda. Nevertheess, t s
the cam of a the pettoners heren that a these rues
were not adhered to strcty and that s the prmary reason
for the nordnate deay n dsposa of mercy pettons. For
ustraton, on recept of mercy petton, the Department
concerned has to ca for a the records/materas
connected wth the convcton. Cang for pece-mea
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Page 81
records nstead of a the materas connected wth the
convcton shoud be deprecated. When the matter s
paced before the Presdent, t s ncumbent upon the part
of the Home Mnstry to pace a the materas such as
|udgment of the Tra Court, Hgh Court and the fna Court,
vz., Supreme Court as we as any other reevant matera
connected wth the convcton at once and not ca for the
documents n pece mea.
97) At the tme of consderng ndvdua cases, we w
test whether those Rues have been strcty comped wth
or not on ndvdua bass.
A+#-.&'& /+ C#&1B$/BC#&1 B#&'&
W3'$ P1$'$'/+ (C3-.) N/&. 55 #+7 132 /0 2013
98) Mr. Shatrughan Chauhan and Mr. Mahnder Chauhan,
famy members of death convcts - Suresh and Ram|
have fed Wrt Petton (Cr.) No. 55 of 2013. Subsequent
to the fng of the Wrt Petton (Cr.) No. 55 of 2013 by the
famy members, the death convcts themseves, vz.,
Suresh and Ram|, aged 60 years and 45 years
respectvey, beongng to the State of Uttar Pradesh, fed
81
Page 82
Wrt Petton (Cr.) No. 132 of the 2013.
99) On 19.12.1997, the pettoners were convcted under
Secton 302 IPC for the murder of fve famy members of
the frst pettoners brother for whch they were awarded
death sentence. On 23.02.2000, the Aahabad Hgh Court
confrmed ther convcton and death sentence and,
subsequenty ths Court dsmssed ther Crmna Appea
beng No. 821 of 2000, vde |udgment dated 02.03.2001.
100) On 09.03.2001 and 29.04.2001, the frst and the
second pettoners heren fed mercy pettons
respectvey addressed to the Governor/Presdent of Inda.
On 28.03.2001, Respondent No. 2-State of Uttar Pradesh
wrote to the prson authortes seekng nformaton inter
alia on the conduct of the frst pettoner n prson. On
05.04.2001, the prson authortes nformed Respondent
No. 2 about hs good conduct.
101) On 18.04.2001, ths Court dsmssed the Revew
Petton (Cr.) beng No. 416 of 2001 whch was fed on
30.03.2001.
102) On 22.04.2001, Respondent No. 1-Unon of Inda
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Page 83
wrote to Respondent No. 2 askng for the record of the
case and for nformaton on whether mercy petton has
been re|ected by the Governor. Meanwhe, other mercy
pettons were receved by Respondent No. 1. There s no
reference n the affdavt of Respondent No. 1 that the
same were forwarded to Respondent No. 2 for
consderaton.
103) On 04.05.2001, Respondent No. 2 wrote to the
Government Advocate, Dstrct Varanas askng for a copy
of the tra court |udgment, whch nformaton s avaabe
from the counter affdavt fed by Respondent No. 2. On
23.05.2001, Respondent No. 2 sent a remnder to the
Government Advocate, Dstrct Varanas to send a copy of
the tra court |udgment. On 04.09.2001, the Dstrct
Magstrate, Varanas nformed Respondent No. 2 that t s
not possbe to get a copy of the tra court |udgment as a
the papers are yng n the Supreme Court.
104) On 13.12.2001, wthout obtanng a copy of the tra
court |udgment, Respondent No. 2 advsed the Governor
to re|ect the mercy petton. On 18.12.2001, the Governor
re|ected the mercy petton after takng nne months tme.
83
Page 84
On 22.01.2002, Respondent No. 2 nformed Respondent
No. 1 that the Governor has re|ected the pettoners
mercy petton. It s the grevance of the pettoners that
nether the pettoners nor ther famy members were
nformed about the re|ecton.
105) On 28.03.2002, Respondent No. 1 wrote to
Respondent No. 2 seekng copy of the tra court
|udgment. On 12.06.2002, the |udgment of the tra court
was furnshed by Respondent No. 2 to Respondent No. 1.
106) Rue V of the Mercy Petton Rues whch excusvey
provdes that the mercy petton shoud be sent aong wth
the |udgments and reated documents mmedatey, states
as foows:
"In a cases n whch a petton for mercy from a convct
under sentence of death s to be forwarded to the
Secretary to the Government of Inda, Mnstry of Home
Affars, the Leut Governor/Chef
Commssoner/Admnstrator or the Government of the
State concerned as the case may be sha forward such
petton as expedtousy as possbe aong wth the
records of the case and hs or ts observatons n respect
of any of the grounds urged n the petton".
107) There s no expanaton for the deay of about fve
months n sendng the papers to Respondent No. 1. On
07.12.2002, Respondent No. 2 wrote to Respondent No. 1
84
Page 85
seekng nformaton about the status of the pettoners
mercy petton. Tweve remnders were sent between
17.01.2003 and 14.12.2005.
108) On 27.07.2003, Respondent No. 4-Superntendent of
|a, n accordance wth the provsons of the U.P. |a
Manua, wrote to Respondent No. 2 seekng nformaton
about the pettoners pendng mercy pettons.
Thereafter, twenty-seven remnders were sent by the
prson authortes between 29.09.2003 and 29.05.2006.
109) On 08.04.2004, Respondent No. 1 advsed the
Presdent to re|ect the mercy petton. On 21.07.2004, the
Presdent returned the pettoners fe (aong wth the fes
of ten other death-row convcts) to Respondent No. 1 for
the advce of the new Home Mnster. On 20.06.2005,
Respondent No. 1 advsed the Presdent to re|ect the
mercy pettons. On 24.12.2010, Respondent No. 1
recaed the fes from the Presdent. On 13.01.2011, the
sad fes were receved from the Presdent. On
19.02.2011, Respondent No. 1 advsed the Presdent to
re|ect the mercy petton.
85
Page 86
110) On 14.11.2011, Respondent No. 2 wrote to
Respondent No. 1 seekng nformaton about the status of
the pettoners mercy pettons.
111) On 29.10.2012, the Presdent returned the fe for the
advce of the new Home Mnster. On 16.01.2013,
Respondent No. 1 advsed the Presdent to re|ect the
mercy petton. On 08.02.2013, the Presdent re|ected the
mercy pettons.
112) On 05.04.2013, the pettoners heard the news
reports that ther mercy pettons have been re|ected by
the Presdent of Inda. It s asserted that they have not
receved any wrtten confrmaton t ths date.
113) On 06.04.2013, the pettoners authorzed ther
famy members, vz. Mr. Shatrughan Chauhan and Mr.
Mahnder Chauhan, to fe an urgent wrt petton n ths
Court, whch was utmatey numbered as Wrt Petton
(Cr.) No. 55 of 2013. By order dated 06.04.2013, ths
Court stayed the executon of the pettoners. Ony on
20.06.2013, the prson authortes nformed vde etter
dated 18.06.2013 that the pettoners mercy pettons
86
Page 87
have been re|ected by the Presdent.
114) A the above detas have been cued out from the
wrt pettons fed by the pettoners and the counter
affdavt fed on behaf of the Unon of Inda as we as the
State of Uttar Pradesh. The foowng are the detas
reatng to dsposa of mercy pettons by the Governor
and the Presdent:
Custody suffered t date 6.10.1996 -
17.12.2013
17 years 2
months
Custody suffered under
sentence of death
19.12.1997 -
17.12.2013
16 years
Tota deay snce fng of mercy
petton t prsoner nformed of
re|ecton by the Presdent
27.04.2001 -
20.06.2013
12 years 2
months
Deay n dsposa of mercy
petton by Governor
Frst pettoner
Second pettoner
9.3.2001 -
28.01.2002
27.04.2001 -
28.01.2002
10 months
9 months
Deay n dsposa of mercy
petton by the Presdent
28.01.2002 -
08.02.2013
11 years
Deay n communcatng
re|ecton by the Presdent
8.02.2013 -
20.06.2013
4 months
115) There s no dspute that these pettoners ked fve
members of ther famy - two aduts and three chdren
over property dspute. It s a henous crme and they were
awarded death sentence whch was aso confrmed by ths
87
Page 88
Court. However, the detas furnshed n the form of
affdavts by the pettoners, counter affdavt fed by
Respondent Nos. 1 and 2 as we as the records produced
by Mr. Luthra, earned Addtona Soctor Genera, ceary
show that there was a deay of tweve years n dsposa of
ther mercy pettons. To put t cear, the Governor of
Uttar Pradesh took around ten months to re|ect the mercy
pettons (09.03.2001 to 28.01.2002) and the Presdent
re|ected the pettons wth a deay of eeven years
(28.01.2002 to 08.02.2013). We aso verfed the
summary prepared by the Mnstry of Home Affars for the
Presdent and the connected papers paced by earned
ASG wheren no dscusson wth regard to the same was
attrbuted to.
116) On gong through varous detas, stages and
consderatons and n the ght of varous prncpes
dscussed above and aso of the fact that ths Court has
accepted n a seres of decsons that undue and
unexpaned deay n executon s one of the supervenng
crcumstances, we hod that n the absence of proper,
pausbe and acceptabe reasons for the deay, the deay
88
Page 89
of tweve years n consderng the mercy pettons s a
reevant ground for the commutaton of death sentence
nto fe mprsonment. We are aso satsfed that the
summary prepared by the Mnstry of Home Affars for the
Presdent makes no menton of tweve years deay much
ess any pausbe reason. Accordngy, both the death
convcts - Suresh and Ram| have made out a case for
commutaton of ther death sentence nto fe
mprsonment.
W3'$ P1$'$'/+ (C3-.) N/. 34 /0 2013
117) Ths wrt petton s fed by Shamk Naran whch
reates to four death convcts, vz., Bavendran, Smon,
Gnanprakasam and Madah aged 55 years, 50 years, 60
years and 64 years respectvey.
118) The case emanates from the State of Karnataka.
Accordng to the pettoners, the accused persons are n
custody for neary 19 years and 7 months. A the persons
were charged under IPC as we as under the provsons of
the TADA. By |udgment dated 29.09.2001, the Desgnated
TADA Court, Mysore convcted the accused persons for the
89
Page 90
offence punshabe under TADA as we as IPC and the
Arms Act and sentenced them inter alia to undergo
rgorous mprsonment for fe.
119) A the accused persons preferred Crmna Appea
beng Nos. 149-150 of 2002 before ths Court whch were
admtted by ths Court. The State of Karnataka aso fed a
Crmna Appea beng No. 34 of 2003 aganst the
|udgment dated 29.09.2001 prayng for enhancement of
sentence from fe mprsonment to death sentence. On
09.01.2003, ths Court refused to accept the cam of the
State of Karnataka and dsmssed ts appea on the ground
of mtaton. However, ths Court, by |udgment and order
dated 29.01.2004, suo motu enhanced the sentence of the
accused persons from fe mprsonment to death. In the
same order, ths Court confrmed the convcton and
sentence mposed by the TADA Court and dsmssed the
appeas preferred by the accused.
120) On 12.02.2004, separate mercy pettons were fed
by the pettoners and the Superntendent, Centra |a,
Begaum forwarded the same to Respondent No. 1.
90
Page 91
121) On 29.04.2004, the revew pettons fed by the
pettoners were aso dsmssed by ths Court.
122) On 29.07.2004, the Governor re|ected the mercy
pettons and, accordng to the pettoners, they were
never nformed about the same.
123) On 07.08.2004, Respondent No. 2 forwarded the
mercy pettons to Respondent No. 1 whch were receved
on 16.08.2004. Here agan, there s no expanaton for the
deay of sx months from 12.02.2004, when the mercy
pettons were frst forwarded to Respondent No. 1.
124) On 19.08.2004, Respondent No. 1 requested
Respondent No. 2 for a copy of the tra court |udgment.
Here agan, the tra court |udgment and other reevant
documents shoud have been sent to Respondent No. 1
aong wth the mercy pettons. We have aready
extracted Rue V of the Mercy Petton Rues reatng to
forwardng of the requred materas as expedtousy as
possbe. On 30.08.2004, Respondent No. 2 sent a copy of
the tra court |udgment to Respondent No. 1 whch was
receved on 09.09.2004.
91
Page 92
125) On 18.10.2004, the pettoners gang eader
Veerappan was ked n an encounter by a Speca Task
Force and hs gang dsbanded.
126) On 29.04.2005, the Home Mnster advsed the
Presdent to re|ect the mercy pettons. There was no
further progress n the pettons t the fes were recaed
from the Presdent and receved back n the Mnstry of
Home Affars, .e., sx years ater on 16.05.2011. Though
separate counter affdavt has been fed by Respondent
No. 1, there s no expanaton whatsoever for the deay of
sx years. Learned counse for the pettoners ponted out
that t s pertnent to take note of the fact that two
consecutve Presdents had deemed t ft not to act on the
advce suggested. In any event, ths procrastnaton
voated the pettoners rght under Artce 21 of the
Consttuton by nfctng sx addtona years of
mprsonment under the constant fear of mmnent death
not authorzed by |udgment of any court.
127) On 28.02.2006, Curatve Petton beng No. 6 of 2006
was dsmssed by ths Court.
92
Page 93
128) In the meanwhe, etters were sent by the pettoners
to the Presdent of Inda hghghtng ther grevance about
ther procrastnaton for about ast tweve years. The
nformaton furnshed by the Mnstry of Home Affars
under the Rght to Informaton Act shows that mercy
pettons submtted after the pettons of the pettoners
were gven prorty and decded earer whe the mercy
pettons of the pettoners were kept pendng.
129) On 16.05.2011, the mercy pettons were recaed by
Respondent No. 1 from the Presdent. Here agan, there s
no expanaton for the deay of sx years. On 25.05.2011,
the Home Mnster advsed the Presdent for the second
tme to re|ect the mercy petton. On 19.11.2012, the
Presdent returned the fe statng that the vews of the
new Home Mnster may be ascertaned. Here agan, there
s no expanaton for the deay of 1 years whe the fe
was pendng wth the Presdent. On 16.01.2013, the
Home Mnster advsed the Presdent for the thrd tme to
re|ect the mercy pettons. On 08.02.2013, the Presdent
re|ected the mercy pettons and Respondent No. 2 was
nformed vde etter dated 09.02.2013.
93
Page 94
130) It s the grevance of the pettoners that though they
were nformed oray and sgnatures were obtaned, the
prson authortes refused to hand over the copy of the
re|ecton etter to them or to ther advocate. The detas
regardng deay n ths matter are as foows:
Custody suffered t date 14.07.1993 -
17.12.2013
20 years 5
months
Custody suffered under
sentence of death
29.01.2004 -
17.12.2013
9 years 11
months
Tota deay n dsposa of the
mercy pettons
12.02.2004 -
08.02.2013
9 years
131) The deay of sx months (12.02.2004 - 07.08.2004)
when the mercy pettons were beng consdered by the
Governor s attrbuted to Respondent No. 1 because the
mercy petton had been sent to Respondent No. 1 on
12.02.2004 and aso because Respondent No. 2/Governor
dd not have |ursdcton to entertan the mercy pettons
and even f cemency had been granted, t woud have
been nu and vod.
132) From the partcuars furnshed by the pettoners as
we as the detas mentoned n the counter affdavt of
Respondent Nos. 1 and 2, we are satsfed that the deay
of nne years n dsposa of ther mercy pettons s
94
Page 95
unreasonabe and no proper expanaton has been offered
for the same. Apart from the deay n queston, accordng
to us, t s mportant to note that deay s undue and
unexpaned. Certan other aspects aso support the case
of the pettoners for commutaton.
133) We have aready mentoned that on 29.01.2004, ths
Court, by ts |udgment and order, suo motu enhanced the
sentence from fe mprsonment to death. It s reevant to
pont out that when the State preferred an appea for
enhancement of the sentence from fe to death, ths Court
re|ected the cam of the State, however, ths Court suo
motu enhanced the same and the fact remans that the
appea fed by the State for enhancement was re|ected by
ths Court.
134) In the earer part of our dscusson, we have aready
hed that the decson n Devender "al Sin!h +hullar
-supra., hodng that the cases pertanng to offences
under TADA have to be treated dfferenty and on the
ground of deay n dsposa of mercy petton the death
sentence cannot be commuted, s #er incuriam. Further,
ths Court n Ba*u$ Memon vs. State of Maharashtra
95
Page 96
(Crmna Appea No. 1728 of 2007) devered on
21.03.2013 and n subsequent cases commuted the death
sentence passed n TADA case to mprsonment for fe.
135) Takng note of these aspects, vz., ther age, n
custody for neary twenty years, unexpaned deay of nne
years n dsposa of mercy pettons couped wth other
reasons and aso of the fact that the summary prepared
by the Mnstry of Home Affars for the Presdent makes no
menton of the deay of 9 years and aso n the ght of
the prncpes enuncated n the earer paragraphs, we
hod that the pettoners have made out a case for
commutaton of death sentence to mprsonment for fe.
W3'$ P1$'$'/+ (C3-.)N/. 1!" /0 2013
136) Praveen Kumar, aged about 55 years, hang from
Karnataka, has fed ths petton. He was charged for
murderng four members of a famy and utmatey by
|udgment dated 05.02.2002, he was convcted under
Sectons 302, 392 and 397 IPC and sentenced to death.
The pettoner was defended on ega ad.
137) By |udgment dated 28.10.2002, death sentence was
96
Page 97
confrmed by the Dvson Bench of the Hgh Court of
Karnataka and by order dated 15.10.2003, ths Court
dsmssed the appea fed by the pettoner.
138) On 25.10.2003, the pettoner sent the mercy petton
addressed to the Presdent of Inda wheren he hghghted
that he has been kept n sotary confnement snce the
|udgment of the tra Court, .e., 05.02.2002.
139) On 12.12.2003, Respondent No. 1 requested
Respondent No. 2 to consder the pettoners mercy
petton under Artce 161 of the Consttuton and ntmate
the decson aong wth the copes of the |udgment of the
tra Court, Hgh Court, poce dary and court proceedngs.
Respondent No. 1 aso receved mercy petton sgned by
260 persons. By order dated 15.09.2004, the Governor
re|ected the mercy petton. On 30.09.2004, Respondent
No. 2 nformed Respondent No. 1 that the pettoners
mercy petton has been re|ected by the Governor.
140) On 18.10.2004, Respondent No. 1 requested
Respondent No. 2 for the second tme to send the
|udgment of the tra Court aong wth the poce dary and
97
Page 98
court proceedngs. On 20.12.2004, accordng to
Respondent No. 1, Respondent No. 2 sent the requested
documents to Respondent No. 1 but Respondent No. 1
camed that the same were n Kannada. On 07.01.2005,
Respondent No. 1 returned the documents sent by
Respondent No. 2 wth a request to provde Engsh
transaton. The State Government was agan remnded n
ths regard on 05.04.2005, 20.04.2005, 04.06.2005 and
21.07.2005. Even after these remnders, the transated
documents were not sent.
141) On 06.09.2005, the mercy petton of the pettoner-
Praveen Kumar was processed and examned wthout
watng for the copy of the |udgment of the tra Court and
submtted for consderaton of the Home Mnster. The
Home Mnster approved the re|ecton of the mercy
petton. On 07.09.2005, Respondent No. 1 advsed the
Presdent to re|ect the pettoners mercy petton. On
14.03.2006, Respondent No. 2 sent the transated
documents to Respondent No. 1.
142) On 20.08.2006, the pettoner wrote to the Presdent
referrng to hs earer mercy petton dated 25.10.2003
98
Page 99
statng that for the ast four years and seven months he
has been angushng n sotary confnement under
constant fear of death.
143) On 29.09.2006, the pettoner wrote to the Chef
Mnster of Karnataka referrng to hs earer mercy petton
dated 25.10.2003 hghghtng the same grevance.
144) The nformaton receved under RTI Act shows that
mercy pettons submtted after the petton of the
pettoner were gven prorty and decded earer whe the
mercy petton of the pettoner was kept pendng.
145) On 01.07.2011, the pettoners mercy petton was
recaed from the Presdent and receved by Respondent
No. 1 and thereafter t remaned pendng consderaton of
the Presdent of Inda for fve years and 10 months. There
s no expanaton for ths nordnate deay.
146) On 14.07.2011, Respondent No. 1 advsed the
Presdent to re|ect the pettoners mercy petton. The fe
remaned wth the Presdent t 29.10.2012, .e. for 1 year
3 months and no expanaton was offered for ths deay.
147) On 29.10.2012, the Presdent returned the
99
Page 100
pettoners mercy petton to Respondent No. 1 ostensby
on the ground of an appea made by 14 former |udges.
However, ths appea, as s admtted n the counter
affdavt fed by Respondent No. 1 tsef, "had not
ndcated any pea n respect of Praveen Kumar". On
16.01.2013, Respondent No. 1 advsed the Presdent to
re|ect the pettoners mercy petton.
148) On 26.03.2013, the Presdent re|ected the
pettoners mercy petton. On 05.04.2013, the pettoner
heard news reports that hs mercy petton has been
re|ected by the Presdent of Inda. He has not receved
any wrtten confrmaton of the same t date.
149) On 06.04.2013, ths Court stayed the executon of
the sentence n Wrt Petton (Cr.) No. 56 of 2013 fed by
PUDR. The foowng detas show the deay n dsposa of
pettoners mercy petton by the Governor and the
Presdent:
Custody suffered t
date
2.3.94-
19.2.95+1.2.99-
17.12.13
15 years 9 months
Custody suffered
under sentence of
death
04.02.02-17.12.13 11 years 10 months
100
Page 101
Tota deay snce
fng of mercy
petton t prsoner
comng to know of
re|ecton by
Presdent
25.10.2003-5.4.2013 9 years 5 months
Deay n dsposa of
mercy petton by
Governor
25.10.03-30.09.04 11 months
Deay n dsposa of
mercy petton by
Presdent
30.09.04-26.03.2013 8 years
150) Though earned counse for the pettoner hghghted
that the tra Court reed on certan decsons whch were
ater hed to be #er incuriam, in vew of the fact that there
s a deay of 9 years n dsposa of the mercy petton,
there s no need to go nto the aspect reatng to the
merts of the |udca decson. On the other hand, we are
satsfed that even though the Unon of Inda has fed
counter affdavt, there s no expanaton for the huge
deay. Accordngy, we hod that the deay n dsposa of
the mercy petton s one of the reevant crcumstances for
commutaton of death sentence. Further, we perused the
notes prepared by the Mnstry of Home Affars as we as
the decson taken by the Presdent. The summary
prepared by the Mnstry of Home Affars for the Presdent
101
Page 102
makes no menton of the unexpaned and undue deay of
9 years n consderng the mercy petton. The
pettoner has rghty made out a case for commutaton of
death sentence nto fe mprsonment.
W3'$ P1$'$'/+ (C3-.)N/. 13 /0 2013
151) Gurmeet Sngh, aged about 56 years, hang from
U.P. has fed ths petton. Accordng to hm, he s n
custody for 26 years.
152) The aegaton aganst the pettoner s that he
murdered 13 members of hs famy on 17.08.1986. By
order dated 20.07.1992, the tra Court convcted the
pettoner under Sectons 302, 307 read wth Secton 34
IPC and awarded death sentence.
153) On 28.04.1994, the Dvson Bench of the Aahabad
Hgh Court pronounced the |udgment n the pettoners
Crmna Appea No. 1333 of 1992. The two Honbe
|udges dsagreed wth each other on the queston of gut,
Mavya, |. uphed the pettoners convcton and death
sentence and dsmssed hs appea, whe Prasad, |.
acqutted the pettoner heren and aowed hs appea.
102
Page 103
154) On 29.02.1996, n terms of Secton 392 of the Code,
the papers were paced before a thrd |udge (Sngh, |.),
who agreed wth Mavya, |. and uphed the pettoners
convcton and sentence.
155) On 08.03.1996, the Dvson Bench dsmssed the
appea of the pettoner heren and confrmed hs death
sentence.
156) On 28.09.2005, ths Court dsmssed the pettoners
appea and uphed the death sentence passed on hm.
The pettoner was represented on ega ad.
157) On 06.10.2005, the pettoner sent separate mercy
pettons through |a addressed to the Presdent of Inda
and the Governor of Uttar Pradesh.
158) On 24.12.2005, the Prson Superntendent sent a
radogram to Respondent No. 2 remndng about the
pendency of the mercy petton. Thereafter, 10
radograms/etters were sent t 16.05.2006. These 11
remnders are tsef testmony of the unreasonabe deay
by the State Government n decdng the pettoners
mercy petton.
103
Page 104
159) On 04.04.2006, the Governor re|ected the
pettoners mercy petton.
160) On 26.05.2006, the fact of the re|ecton by the
Governor was communcated to Respondent No. 1 and to
the Prson authortes after a deay of more than 1
months.
161) On 16.06.2006, the Presdent forwarded to
Respondent No. 1 etter dated 02.06.2006 of the
Addtona Dstrct & Sessons |udge, Shah|ahanpur,
addressed to Respondent No. 2 requestng to ntmate the
status of the pettoners mercy petton pendng before
the Presdent.
162) On 07.07.2006, Respondent No. 1 forwarded the
etter of the Addtona Dstrct and Sessons |udge to
Respondent No. 2 wth a request to forward the
pettoners mercy petton as the same has not been
receved aong wth the |udgment of the courts, poce
dary etc.
163) On 09.02.2007, Respondent No. 2 sent the mercy
petton and other reated documents to Respondent No.
104
Page 105
1, .e., 10 months after the mercy petton was re|ected by
the Governor. The Mercy Petton Rues, whch we have
aready extracted n the earer part, expcty provde that
the mercy petton and the reated documents shoud be
sent mmedatey. There s no expanaton for the deay of
10 months n sendng the papers to Respondent No. 1.
164) On 18.05.2007, Respondent No. 1 advsed the
Presdent to re|ect the pettoners mercy petton.
165) On 04.11.2009, the pettoners mercy petton fe
was receved from the Presdents offce by Respondent
No. 1.
166) Agan on 09.12.2009, Respondent No. 1 advsed the
Presdent to re|ect the pettoners mercy petton. There
was no progress n the pettoners case for the next 2
years and 11 months, .e., t 29.10.2012.
167) On 29.10.2012, the Presdent returned the
pettoners mercy petton to Respondent No. 1, ostensby
on the pretext of an appea made by 14 former |udges,
even though, as s admtted n the counter affdavt fed
by Respondent No. 1, ths appea does not n any way
105
Page 106
reate to the case of the pettoner.
168) On 16.01.2013, Respondent No. 1 advsed the
Presdent to re|ect the pettoners mercy petton.
169) On 01.03.2013, the Presdent of Inda re|ected the
pettoners mercy petton.
170) On 05.04.2013, the pettoner heard the news reports
that hs mercy petton has been re|ected by the Presdent
of Inda. However, t date the pettoner has not receved
any offca wrtten communcaton that hs mercy petton
has been re|ected ether by the Governor or by the
Presdent.
171) On 06.04.2013, ths Court stayed the executon of
the death sentence of the pettoner n W.P. (Cr.) No. 56 of
2013 fed by the Peopes Unon for Democratc Rghts
(PUDR).
172) On 20.06.2013, 3 months after the actua re|ecton
of the pettoners mercy petton, the news was
communcated to the prson authortes. The foowng are
the detas regardng the deay n dsposa of mercy
petton by the Governor and the Presdent:
106
Page 107
Custody suffered t
date
16.10.1986-
17.12.2013 ess 1
year of under-tra
ba
26 years 2 months
Custody suffered
under sentence of
death
20.07.1992-
17.12.2013
21 years 5 months
Tota deay snce
fng of mercy
petton t prsoner
comng to know of
re|ecton by Presdent
6.10.2005-
20.06.2013
7 years 8 months
Deay n dsposa of
mercy petton by
Governor
6.10.2005-4.4.2006 6 months
Deay n dsposa of
mercy petton by
Presdent
4.4.2006-1.3.2013 6 years 11 months
Deay n
communcatng
re|ecton to pettoner
1.3.2013-20.06.2013 3 years
The above detas ceary show that there s a deay of 7
years 8 months n dsposa of mercy petton by the
Governor and the Presdent.
173) Though Respondent No. 1 has fed a separate
counter affdavt, there s no acceptabe reason for the
deay of 7 years 8 months. In the absence of adequate
materas for such a huge deay, we hod that the deay s
undue and unexpaned.
107
Page 108
174) In the fe of the Home Mnstry paced before us, at
pages 31 & 32, the foowng recommendatons have been
made for commutaton of death sentence to fe
mprsonment whch are as under:
"I thnk that n ths case too, we can recommend
commutaton of death sentence to fe mprsonment for
two reasons:
1) There was a dsagreement amongst the Hon.
|udges of the Hgh Court mpyng thereby that there
was some doubt n the mnd of at east one Hon. |udge
that ths mght not be the rarest of the rare cases.
2) Unusua ong deay n nvestgaton and tra s
another reason. Ths knd of submsson was aso made
by the earned amcus curae but was dsregarded by
the Court. I thnk the submsson shoud have been
accepted.
Accordngy, I suggest that we may recommend
that the death sentence of Sh. Gurmeet Sngh be
commuted to that of fe mprsonment but he woud not
be aowed to come out of prson t he ves.
Sd/-"
However, ths was not agreed to by the Home Mnster.
175) In vew of the reasons and dscusson n the earer
part of our order, the pettoner-convct s entted to
commutaton of death sentence nto fe mprsonment.
Even n the summary prepared by the Mnstry of Home
Affars for the Presdent makes no menton of the deay of
7 years 8 months. We are satsfed that the pettoner has
made out a case for commutaton of death sentence nto
108
Page 109
fe mprsonment.
W3'$ P1$'$'/+ (C3-.) N/. 1!! /0 2013
176) Sona and San|eev Kumar, aged about 30 and 38
years respectvey, hang from Haryana, have fed ths
petton. Accordng to them, they are n custody for about
12 years.
177) On 27.05.2004, both of them were convcted for the
offence punshabe under Secton 302 and sentenced to
death by the tra Court. By order dated 12.04.2005, the
Hgh Court confrmed ther convcton but modfed ther
sentence of death nto fe mprsonment. The order of the
Hgh Court was chaenged before ths Court n Crmna
Appea No. 142 of 2005 and Crmna Appea No. 894 of
2005 and Crmna Appea No. 895 of 2006. By order
dated 15.02.2007, ths Court uphed ther convcton and
enhanced the mprsonment for fe to death sentence.
178) In February, 2007, the pettoners fed a mercy
petton before the Governor of Haryana. Smar mercy
pettons were sent to the Presdent.
179) On 23.08.2007, the Revew Pettons beng Nos. 260-
109
Page 110
262 of 2007 fed by the pettoners were dsmssed.
180) On 31.10.2007, Respondent No. 2 nformed
Respondent No. 1 that the mercy pettons fed by the
pettoners have been re|ected by the Governor of
Haryana and forwarded the reevant documents.
181) On 08.02.2008, Respondent No. 1 advsed the
Presdent to re|ect the pettoners mercy pettons. The
mercy pettons remaned pendng wth the Presdent t
16.04.2009.
182) On 16.04.2009, the Presdent sent the pettoners fe
aong wth the frst pettoners etter dated 17.02.2009 to
re|ect ther pettons conveyng ther dffcut poston to
contnue wth ther fe to Respondent No. 1.
183) On 20.05.2009, Respondent No. 1 advsed the
Presdent for the second tme to re|ect the pettoners
mercy pettons.
184) On 04.02.2010, the Presdent returned the
pettoners fe to Respondent No. 1 seekng carfcaton
whether the frst pettoners request to re|ect the mercy
petton amounts to wthdrawa of orgna mercy petton
110
Page 111
and f so, s there further need to re|ect the petton? On
17.02.2010, Respondent No. 1 referred the Presdents
query to the Law Department. On 05.03.2010, Respondent
No. 1 advsed the Presdent for the 3
rd
tme to re|ect the
pettoners mercy pettons. On 03.01.2012, upon the
request of Respondent No. 1, the Presdent returned the
pettoners fe to Respondent No. 1. On 18.01.2012,
Respondent No. 1 advsed the Presdent for the 4
th
tme to
re|ect the pettoners mercy pettons.
185) On 29.10.2012, the Presdent returned the
pettoners fe back to Respondent No. 1 n the ght of
the appea made by 14 former |udges. It s ponted out by
earned counse that admttedy the appea was made for
other prsoners and not for the pettoners and so there
was no need to return the fes.
186) On 29.01.2013, snce t was found that the |udges
appea dd not pertan to the pettoners, Respondent No. 1
advsed the Presdent for the 5
th
tme to re|ect the
pettoners mercy pettons. On 21.02.2013, the
pettoners, anxous for a decson on ther mercy pettons,
wrote to the Presdent agan reteratng ther pea for
111
Page 112
mercy.
187) On 28.03.2013, the Presdent returned the
pettoners fe to Respondent No. 1, supposedy on
account of the pettoners etter dated 21.02.2013. On
06.06.2013, Respondent No. 1 advsed the Presdent for
the 6
th
tme to re|ect the pettoners mercy pettons "as
no mtgatng crcumstance was found". Fnay, on
29.06.2013, the Presdent re|ected the pettoners mercy
pettons.
188) On 13.07.2013, the pettoners famy members
receved a etter dated 11.07.2013 from the prson
authortes nformng that the pettoners mercy pettons
have been re|ected by the Presdent of Inda. The
foowng are the detas regardng the deay n dsposa of
the mercy petton by the Governor and the Presdent:
Custody suffered t
date
26.08.2001/19.09.2001-
17.12.2013
12 years 3 months
Tota deay snce
fng of mercy
petton t prsoner
comng to know of
re|ecton by
Presdent
Feb.2007-13.07.2013 6 years 5 months
Deay n dsposa of
mercy petton by
Feb. 2007-31.10.2007 8 months
112
Page 113
Governor
Deay n dsposa of
mercy petton by
Presdent
31.10.2007-29.06.2013 5 years 8 months
189) In vew of the above detas as we as the
expanaton offered n the counter affdavt fed by
Respondent No. 1, we hod that the deay n dsposa of
mercy pettons s undue and unexpaned and n the ght
of our concuson n the earer part of our order, the
unexpaned and undue deay s one of the crcumstances
for commutaton of death sentence nto fe mprsonment.
190) In addton, due to unbearabe menta agony after
confrmaton of death sentence, pettoner No.1 attempted
sucde. In vew of our concuson that the deay n
dsposa of mercy pettons s undue and unexpaned, we
hod that the pettoners have made out a case for
commutaton of death sentence nto fe mprsonment.
W3'$ P1$'$'/+(C3-.)N/. 12 /0 2013
191) PUDR has fed ths petton for Sundar Sngh, who s
hang from Uttarkhand. On 30.06.2004, Sundar Sngh
was convcted by the Sessons Court under Sectons 302,
113
Page 114
307 and 436 IPC and sentenced to death. On 20.07.2005,
the Hgh Court confrmed the death sentence passed by
the tra Court. On 16.09.2010, ths Court dsmssed the
appea fed by Sundar Sngh through ega ad.
192) On 29.09.2010, Sundar Sngh sent a mercy petton
through |a authortes addressed to the Presdent of Inda
statng theren that he had commtted the offence due to
nsanty and that he repented for the same each day and
sha contnue to do for the rest of hs fe.
193) On 29.09.2010, the prson authortes fed n a
nomna ro for Sundar Sngh n whch they stated that
Sundar Snghs menta condton s abnorma. The sad
form was sent to Respondent Nos. 1 and 2. The prson
authortes notced that Sundar Snghs behavour had
become extremey abnorma. He was ntay treated for
menta ness by the prson doctor and, thereafter, he was
examned by doctors from the HMM Dstrct Hospta,
Hardwar. Thereafter, when he contnued to show sgns
of nsanty, the prson authortes caed a team of
psychatrsts from the State Menta Insttute, Dehradun to
examne hm. The psychatrsts found hm to be sufferng
114
Page 115
from schzophrena and recommended that he be sent to
Benaras Menta Hospta. On 15.10.2010, Sundar Sngh
was admtted to Benaras Menta Hospta and he remaned
there for 1 years t hs dscharge on 28.07.2012 wth
further prescrptons and advce for foow up treatment.
194) On 19.10.2010, Respondent No. 1 nformed
Respondent No. 2 n wrtng that Sundar Snghs mercy
petton shoud be frst sent to the Governor.
195) Based on the drecton of Respondent No. 1, on
20.10.2010, the prson authortes forwarded the mercy
petton of Sundar Sngh to the Governor. On 21.01.2011,
the Governor re|ected the mercy petton of Sundar Sngh
and Respondent No. 2 forwarded the same to the
Presdent.
196) On 24.05.2011, Respondent No. 1 wrote to
Respondent No. 2 askng for a copy of Sundar Snghs
nomna ro, medca record and crme record. On
01.06.2011, Respondent No. 2 sent Sundar Snghs
nomna ro and medca report to Respondent No. 1. In
the coverng etter, Respondent No. 2 nformed
115
Page 116
Respondent No. 1 that Sundar Sngh had been decared to
be a menta patent by medca experts and was admtted
to Varanas Menta Hospta for treatment on 11.12.2010.
197) On 03.02.2012, Respondent No. 1 advsed the
Presdent to re|ect the mercy petton fed by Sundar
Sngh. On 30.10.2012, the Presdent returned the mercy
petton of Sundar Sngh ostensby because of the petton
sent by 14 former |udges wheren there was a specfc
reference to the case of Sundar Sngh.
198) On 28.12.2012, Sundar Sngh was examned by a
doctor n prson who noted that he was "sucday
ncned" and prescrbed hm very strong ant psychotc
medcnes. Despte that, on 01.02.2013, Respondent No. 1
advsed the Presdent to re|ect the mercy petton of
Sundar Sngh.
199) On 16.02.2013, the prson authortes agan caed a
team of three psychatrsts from the State Menta Hospta,
Dehradun, who examned Sundar Sngh. In ther report,
they mentoned that Sundar Sngh had aready been
dagnosed as sufferng from undfferentated
116
Page 117
schzophrena. They noted that he was "unkempt and
untdy, cooperatve but not very much communcatve"
and hs "speech s decreased n fow and content" and "at
tmes s napproprate and ogca to the queston asked."
They concuded as foows:
"he s sufferng from chronc psychotc ness and he needs
ong term management".
The prson authortes sent ths report to Respondent No.
1.
200) On 31.03.2013, the Presdent re|ected the mercy
petton of Sundar Sngh. On 02.04.2013, Respondent No.
1 nformed Respondent No. 2 that the Presdent has
re|ected the mercy petton of Sundar Sngh. On
05.04.2013, Sundar Sngh was oray nformed by the
prson authortes that hs mercy petton had been
re|ected by the Presdent but he dd not appear to
understand and dd not react.
201) On 06.04.2013, ths Court stayed the executon of
death sentence of Sundar Sngh n W.P.(Cr.) No. 56 of
2013 fed by PUDR.
202) On 31.10.2013, at the nstance of the prson
117
Page 118
authortes, Dr. Arun Kumar, Neuro Psychatrst from the
State Menta Insttute, Dehradun was brought to the prson
to examne Sundar Sngh. He opned as foows:
"Sundar Sngh s sufferng from schzophrena
(undfferentated) and requres ong term bed rest. He s not
mentay ft to be awarded for death penaty."
203) We have carefuy perused a the detas. Though
there s a deay of ony 2 years n consderng the mercy
petton of Sundar Sngh, the counter affdavt as we as
varous communcatons sent by the |a authortes ceary
show that Sundar Sngh was sufferng from menta ness,
.e., Schzophrena.
204) In the earer part of our order, whe consderng
"menta ness", we have noted Rues 386 and 387 of the
U.P. |a Manua whch are appcabe to the State of
Uttarakhand aso, whch ceary show that when
condemned convct deveops nsanty, t s ncumbent on
the part of the Superntendent to stay the executon of
sentence of death and nform the same to the Dstrct
Magstrate. In the repy affdavt fed on behaf of
Respondent Nos. 2-4 nsofar as menta ness of the
convct - Sundar Sngh s concerned, t s stated as under:
118
Page 119
"16. As far as ness of the convct Sunder Sngh s
concerned, he has been reguary medcay examned
as per the provsons of the |a manua, he was
examned by Medca Offcers of HMM Dstrct Hospta,
Hardwar and thereafter on the recommendaton of the
Doctors of State Menta Heath Insttute, Dehradun, the
Prsoner was sent to Menta Hospta, Varanas on
15.10.2010 for examnaton and treatment.
17. Convct Sunder Sngh was admtted n the Menta
Hospta, Varansa for treatment and after hs treatment,
Board of Vstors under Charpersonshp of Dstrct |udge,
Varansa, convct Sunder Sngh was found ft and,
therefore, they dscharged the convct Sunder Sngh
aong wth certan prescrpton and advce on 28.7.2012
from Menta Hospta, Varanas.
18. In pursuance of above advce of the Doctors of
Menta Hospta, Varansa, on the request of the |a
Admnstraton to State Menta Hospta, Seaqu,
Dehradun, a pane of three Doctors vsted on 16.2.2013
and examned the Convct Sunder Sngh and opned that
on the bass of nformaton and present assessment, he
s sufferng from chronc psychatrc ness and he need
ong term treatment.
19. Convct has thereafter been reguary provded
due medca assstance n the form of medcne and
examnaton. On 31.10.2013, Dr. Arun Kumar, neuro
psychatrc from State Menta Heath Insttute, Seaqu,
Dehradun vsted to the Dstrct |a for examnaton of
the Convct Sunder Sngh and opned: Impresson:
Sunder Sngh s sufferng from Schzophrena
(undfferentated) and requre ong term bed rest. He s
not mentay ft to be awarded for death penaty.
20. On 5.11.2013, on the aforesad report dated
31.10.2013, Chef Medca Superntendent, State Medca
Heath Insttute Seaqu Dehradun, has been requested
to send a pane of Doctors for thorough examnaton of
the menta state of the sad Prsoner Sunder Sngh.
Upon medca examnaton by a board of Doctors and
recept of the examnaton report the State and |a
Authortes sha act n accordance wth aw.
In vew of the above submsson, ths Honbe
Court may kndy pass approprate orders dsposng of
the present petton. The answerng respondent s duty
bound to compy the orders passed by the Honbe
Court."
119
Page 120
Aong wth the repy affdavt, the State has fary encosed
the medca reports, varous correspondence/ntmaton
about the Schzophrena of unatc nature/menta ness of
the pettoner sufferng from Schzophrena. Further, even
on 24.05.2011, the Government of Inda, Mnstry of Home
Affars, after recept of mercy petton of the condemned
prsoner - Sundar Sngh requested the Prncpa Secretary,
Government of Uttarakhand, Secretarat, Dehradun to
furnsh the foowng documents/nformaton at the
earest:
() Present age of the prsoner aong wth nomna ro.
() Medca report of the prsoner
() Prevous crme record, f any, of the prsoner.
205) Pursuant to the same, Shr Ra|eev Gupta,
Prncpa Secretary, Government of Uttarakhand furnshed
a the detas to the |ont Secretary (|udca), Mnstry of
Home Affars, Government of Inda, |asamer House, New
Deh encosng varous medca reports. Learned counse
for the State has aso paced menta status of Sundar
120
Page 121
Sngh duy certfed by the State Menta Heath Insttute,
Dehradun whch s as under:
"MENTAL STATUS EXAMINATION REPORT
Prsoner Name: Mr. Sunder Sngh, age about 40
yrs/mae, S/o Mr. Har Sngh wth mark of dentfcaton -
Back moe over eft sde ower part of neck, has been
assessed by foowng experts on 16/2/2013 at Dstrct
|a, Hardwar.
Dr. |.S. Bsht, Psychatrst
Dr. Arun Kumar, Psychatrst
Dr. Pratbha Sharma, Psychatrst
As per nformaton by |a staff and feow prsoners
above mentoned prsoner s not nteractng wth others,
not concerned about persona hygene and woud ke to
stay aone.
Prevous record show that he was referred to
Banaras Menta Hospta on 11/12/2010 for Management
after beng dagnosed as Undfferentated Schzophrena
by prevous psychatrst.
Current menta status examnaton shows that he
s unkempt and untdy, cooperatve but not very much
communcatve. Speech s decreased n fow and
content. At tme t was napproprate and ogca to the
queston asked. Affect s bunted. Thought fow s
decreased and there s poor awareness.
OPINION
On the bass of nformaton and present
assessments he s sufferng from chronc Psychotc
ness and he needs ong term treatment.
(Sgnature of Dr. egbe) (Sgnature of Dr. egbe)
(Sgnature of Dr. egbe)
Date 16/2/2013
Dr. |.S. Bsht Dr. Arun Kumar Dr. B. Pratbha
Sharma
Psychatrst
121
Page 122
Thumb Date 16/2/13 Dstt. |a
Hardwar"
MENTAL STATUS EXAMINATION REPORT
Prsoner Name: Mr. Sunder Sngh, age about 41
years/mae, S/o Mr. Har Sngh
Identfcaton Mark: Back moe over eft sde ower part
of neck.
Index prsoner s examned by me at Dstrct |a,
Hardwar.
As per nformaton by |a staff, prsoner records and
current menta status examnaton, the sufferngs from
undfferentated Schzophrena whch s chronc ness.
The patent/prsoner requre ong term treatment to
reman n remsson perod. Person wth mentoned
dagnose reman n remsson and cannot be sad as
cured.
Impresson: Sunder Sngh s sufferng from
Schzophrena (Undfferentated) and requred ong term
treatment.
He s not mentay ft to be awarded for death penaty.
(Sgnature of Dr. Arun Kumar)
Date 31/10/13
Dr. Arun Kumar
(MBBS, DPM, DNB)
Neuropsychatres
State Menta Heath Insttute
Saequ Dehradun
Thumb Attested LTI of Sunder Sngh
(Sgnature of Dr. Arun Kumar)
Date 31/10/13
Dr. Arun Kumar
(MBBS, DPM, DNB)
Neuropsychatres
State Menta Heath Insttute
Saequ Dehradun"
206) Even f we agree that there s no undue deay n
122
Page 123
dsposa of the mercy petton by the Presdent, we are
satsfed that Sundar Sngh s sufferng from menta
ness, .e., Schzophrena as noted by 3 doctors, vz., Dr.
|.S. Bsht, Dr. Arun Kumar, and Dr. Pratbha Sharma,
Psychatrsts attached to the State Menta Heath Insttute,
Saequ, Dehradun.
207) In the earer part of our dscusson, we have
hghghted varous Rues from the U.P. |a Manua whch
are appcabe to the State of Uttarakhand aso, varous
nternatona conventons to whch Inda s a party and the
decsons by the U.N.O. regardng award of death sentence
and executon of persons sufferng from menta ness.
Though a the detas were furnshed by the persons
concerned to Respondent No. 1, Mnstry of Home Affars,
unfortunatey, those aspects were nether adverted to by
the Home Mnster nor the summary prepared by the
Mnstry of Home Affars for the Presdent makes any
reference to the menta condton as certfed by the
competent doctors.
208) We are satsfed that n vew of the menta
ness, he cannot be executed. On ths ground, the death
123
Page 124
sentence has to be commuted to fe mprsonment. If the
condton of Sundar Sgh requres further treatment, we
drect the |a authortes to provde a such medca
factes to hm.
W3'$ P1$'$'/+ (C3-.)N/. 10 /0 2013
209) The death convct |afar A, aged about 48 years,
hang from U.P., has fed the above wrt petton.
Accordng to hm, he s n custody for more than 11 years
(snge ce confnement).
210) On 14.07.2003, the pettoner was convcted under
Secton 302 IPC for the murder of hs wfe and fve
daughters and was sentenced to death. On 27.01.2004,
the Dvson Bench of the Aahabad Hgh Court confrmed
the death sentence passed on the pettoner. On
05.04.2004, the pettoner through ega ad fed SLP (Cr.)
No. 1129 of 2004. Ths Court dd not grant speca eave
and dsmssed the SLP in limine.
211) On 19.04.2004, the pettoner sent a mercy petton
through |a superntendent to the Presdent of Inda and
the Governor of Uttar Pradesh. On 22.04.2004,
124
Page 125
Respondent No. 4 sent a radogram to Respondent No. 2
to enqure about the status of the pettoners mercy
petton. Thereafter, between 24.04.2004 and 16.05.2005,
14 more such radograms/etters were sent by Respondent
No. 4 to Respondent No. 2 enqurng about the status of
the pettoners mercy petton. These 15 remnders
testfy to the unreasonabe deay caused by the State
Government n decdng the pettoners mercy petton.
212) On 20.05.2005, one year after the recept of the
mercy petton, Respondent No. 2 wrote to the Dstrct
Magstrate and the Government Advocate, Aahabad Hgh
Court for the tra court as we as the Hgh Court
|udgments reatng to the pettoners case. Here agan,
there s no expanaton for the deay of 11 months.
213) On 30.09.2005, the Government Advocate, Aahabad
Hgh Court sent the Hgh Court |udgment n the
pettoners case to Respondent No. 2. Here agan, there
s no expanaton for the deay of four months n sendng
the |udgment.
214) On 28.11.2005, the Governor re|ected pettoners
125
Page 126
mercy petton. It took one year and seven months n
re|ectng the pettoners mercy petton n spte of 15
remnders. On 30.12.2005, the Speca Secretary, UP
Government nformed the Home Mnstry, Government of
Inda about the re|ecton of mercy petton by the
Governor.
215) On 22.12.2005, nformaton about the re|ecton of the
mercy petton by the Governor was communcated to the
prson authortes one month after ts re|ecton. On
18.01.2006, Respondent No. 1 requested Respondent No.
2 to furnsh the pettoners mercy petton aong wth the
recommendaton of the Governor, |udgments of the courts
and other records of the case.
216) On 17.07.2006, Respondent No. 2 sent the
documents to Respondent No. 1 whch were requested
vde etter dated 18.01.2006 aong wth a request for an
eary ntmaton of the decson on the mercy petton.
Here agan, there s no expanaton for the deay of seven
months n sendng those documents.
217) As ponted out earer, Rue V of the Mercy Petton
126
Page 127
Rues expcty provdes that the mercy petton shoud be
sent aong wth the |udgments and reated documents
mmedatey. There s no expanaton for ths nordnate
deay of seven months n sendng the papers to
Respondent No. 1.
218) On 17.08.2006, Respondent No. 1 advsed the
Presdent to re|ect the mercy petton. On 16.01.2007,
Respondent No. 2 sent another remnder to Respondent
No. 1 regardng the pendency of the pettoners mercy
petton. Thereafter, further 15 remnders were sent on
varous dates .e., on 06.09.2007, 10.07.2008, 19.02.2009,
17.03.2009, 29.05.2009, 27.07.2009, 10.09.2009,
29.09.2009, 10.11.2009, 14.01.2010, 20.04.2010,
26.07.2010, 30.08.2010, 15.07.2011 and 22.11.2011.
These 16 remnders testfy the unreasonabe deay caused
n decdng the pettoners mercy petton.
219) On 30.09.2011, Respondent No. 1 recaed the fes
from the Presdent. There s no expanaton for ths
nordnate deay of 5 years and 1 month. On 01.11.2011,
Respondent No. 1 advsed the Presdent to re|ect the
mercy petton.
127
Page 128
220) On 30.10.2012, the Presdent returned the mercy
petton to Respondent No. 1 ostensby on the ground of a
petton sent by 14 retred |udges to the Presdent. There
was no reference of the pea of |afar A n the
representaton made by 14 retred |udges. On
24.01.2013, Respondent No. 1 advsed the Presdent to
re|ect the mercy petton. On 14.03.2013, the Presdent
re|ected the mercy petton, vz., 7 years and 4 months
after re|ecton by the Governor and after 16 remnders
sent by the State Government.
221) On 19.03.2013, Respondent No. 1 nformed
Respondent No. 2 of the re|ecton of the mercy petton.
On 05.04.2013, the pettoner heard the news reports that
hs mercy petton has been re|ected by the Presdent of
Inda.
222) On 06.04.2013, ths Court stayed the executon of
the pettoner n Wrt Petton (Cr.) No. 56 of 2013 fed by
PUDR.
223) On 22.06.2013, the prson authortes were nformed
vde etter dated 18.06.2013 that the Presdent re|ected
128
Page 129
the pettoners mercy petton. There s no expanaton
for ths deay of three months n nformng the prson
authortes and the pettoner about the re|ecton of the
mercy petton.
224) On 08.07.2013, Respondent No. 4 nformed the
pettoner that hs mercy petton had been re|ected by the
Presdent.
225) The detas regardng deay n dsposa of mercy
pettons by the Governor and the Presdent are as foows:
Custody suffered t date 27.07.2002 -
17.12.2013
11 years, 5
months
Custody suffered under
sentence of death
14.07.2003 -
17.12.2013
10 years, 5
months
Tota deay n dsposa of mercy
petton
19.04.2004 -
22.06.2013
9 years, 2
months
Deay n dsposa of mercy
petton by Governor
19.04.2004 -
29.09.2005
1 year, 5
months
Deay n dsposa of mercy
petton by the Presdent
29.09.2005 -
14.03.2013
7 years, 5
months
Deay n ntmatng prsoner of
re|ecton of mercy petton by
Presdent
14.03.2013 -
22.06.2013
3 months
226) A perusa of the detas furnshed by the pettoner,
counter affdavt fed by the Unon of Inda as we as the
State ceary shows that the deay was to the extent of 9
years. Though n the counter affdavt Respondent No. 1
has dscussed varous aspects ncudng the decson taken
129
Page 130
by the Home Mnstry and the note whch was prepared for
the approva of the Presdent, the fact remans that there
s no expanaton at a for takng seven years and fve
months for dsposa of a mercy petton by the Presdent.
It s for the executve, vz., the Home Mnstry, to expan
the reason for keepng the mercy petton for such a ong
tme. To that extent, everyday, after the confrmaton of
death sentence by ths Court s panfu for the convct
awatng the date of executon.
227) Accordngy, n vew of the unexpaned and undue
deay of nne years n dsposa of mercy petton by the
Governor and the Presdent, we hod that the pettoner s
entted to commutaton of death sentence to fe.
228) Apart from undue and unexpaned deay n dsposa
of mercy petton, another reevant aspect has not been
noted by the Mnstry whe preparng the notes for the
Presdent, vz., when the pettoner preferred speca eave
to appea aganst the decson of the Hgh Court
confrmng the death sentence, ths Court dd not grant
speca eave and dsmssed the SLP in limine. Though
such recourse s permssbe nasmuch as snce t s a case
130
Page 131
of death sentence, t s desrabe to examne the materas
on record frst hand n vew of tme-honoured practce of
ths Court and to arrve at an ndependent concuson on
a ssues of facts and aw, unbound by the fndngs of the
tra court and the Hgh Court. Ths prncpe has been
hghghted n varous decsons ncudng the recent one n
Mohd. A#mal &asa$ vs. State of Maharashtra (2012) 9
SCC 1.
229) In addton, we aso perused the notes prepared by
the Mnstry of Home Affars, the decson taken by the
Home Mnstry and the notes paced for the approva of
the Presdent. It s not n dspute that the summary
prepared by the Mnstry of Home Affars for the Presdent
faed to consder the undue deay and there s no
expanaton for the same at a.
230) We are satsfed that a these grounds enabe ths
court to commute death sentence nto fe.
W3'$ P1$'$'/+ (C3-.) N/&. 11 #+7 136 /0 2013
231) Wrt Petton (Cr.) No. 191 of 2013 has been
fed by Magana Barea, death convct, aged about 40
131
Page 132
years, hang from the State of M.P. and on hs behaf,
PUDR has fed Wrt Petton (Cr.) No. 136 of 2013 for
smar reef.
232) The pettoner cams that he s n custody for more
than three years (snge ce confnement). On 03.02.2011,
the pettoner, who s a trba, was convcted by the
Sessons Court under Secton 302 IPC for the murder of hs
fve daughters and under Secton 309 IPC and was
mposed a sentence of death. On 12.09.2011, the Dvson
Bench of the Madhya Pradesh Hgh Court confrmed the
death sentence passed on the pettoner who was
represented on ega ad. On 09.01.2012, the pettoner,
through ega ad, fed SLP (Cr.) Nos. 329-330 of 2012.
Ths Court dd not grant speca eave and dsmssed the
SLP in limine.
233) On 02.02.2012, the pettoner sent a mercy petton
through |a addressed to the Presdent of Inda and the
Governor of Madhya Pradesh. The mercy petton, whch
was verfed by the prson authortes, stated inter alia that
the pettoner was sufferng from menta ness and was
contnuousy undergong treatment through Centra |a,
132
Page 133
Bhopa.
234) On 20.02.2012, the Prson Superntendent, n
accordance wth Rue 377 of the Madhya Pradesh Prson
Manua, submtted a form to the State Government. In
coumn 18, t was stated that hs conduct n prson was
good. Aganst coumn 19, whch was for the Prson
Superntendent to opne on ateraton of the pettoners
sentence, the Superntendent opned as foows:
"Commutaton of sentence s recommended".
235) On 20.02.2012, the Prson Superntendent, n
accordance wth the Government Law and |udcary
Department Crcuar No. 4837/21 dated 13.12.1982
submtted to the State Government a form entted
"Requred Informaton". The entres made by the
Superntendent n the sad form stated inter alia that the
pettoner s not a habtua crmna, he beongs to the
weaker secton of the socety and he s of menta dsorder
and at present under treatment of Psychatry Department
Hamda Hospta, Bhopa. Aganst Coumn No. 11 whch
seeks the Superntendents recommendatons, t was
133
Page 134
stated that, "Commutaton of Sentence s recommended".
236) On 07.08.2012, Respondent No. 1 receved the
pettoners mercy petton forwarded by Respondent No.
2. There was a deay of sx months n forwardng the
mercy petton to Respondent No. 1 and no expanaton
was gven by Respondent No. 2 n the counter affdavt.
237) On 31.08.2012, Respondent No. 1 wrote to
Respondent No. 2 requestng the pettoners medca
report snce n the mercy petton, t was stated that the
pettoner s sufferng from menta ness. Respondent No.
1 aso requested Respondent No. 2 to confrm whether the
pettoner had fed a revew petton n ths Court aganst
the dsmssa of hs SLP.
238) On 19.10.2012, Respondent No. 1 sent a remnder to
Respondent No. 2 about the queres vde etter dated
31.08.2012. On 29.11.2012, Respondent No. 1 sent the
second remnder to Respondent No. 2 about the queres.
On 26.02.2013, Respondent No. 1 sent a thrd remnder to
Respondent No. 2 about the same.
239) On 25.03.2013, the |a Superntendent, Centra |a,
134
Page 135
Indore forwarded the medca report to Respondent No. 1
and t was aso nformed that the pettoner has not fed a
revew petton n ths Court aganst the dsmssa of hs
SLP.
240) On 06.06.2013, the Home Mnster advsed the
Presdent to re|ect the mercy petton. On 16.07.2013, the
Presdent re|ected the pettoners mercy petton. There
was no reference to the pettoners menta heath report
n the note prepared for approva of the Presdent.
Lkewse, there was no reference to the fact that ths Court
had re|ected the pettoners SLP in limine n a death case.
241) On 27.07.2013, the pettoner was oray nformed by
the prson authortes that hs mercy petton has been
re|ected by the Presdent of Inda. The pettoner was
nether furnshed wth any offca wrtten communcaton
regardng the re|ecton of hs mercy petton by the
Presdent of Inda nor the pettoner was nformed that hs
mercy petton has been re|ected by the Governor.
242) On 27.07.2013, the Superntendent of the Centra
Prson, |abapur sent a etter to the Icchawar Poce Staton
135
Page 136
askng them to nform the pettoners famy to meet the
pettoner urgenty.
243) On 07.08.2013, ths Court stayed the executon of
the pettoner n Wrt Petton (Cr.) No. 136 of 2013 fed
by PUDR. The detas regardng deay n dsposa of mercy
petton are as foows:
Deay by State to send mercy
petton to MHA
2.02.2012 -
07.08.2012
6 months
Tota deay snce mercy
petton was fed
2.02.2012 -
27.07.2013
1 year 6
months
Deay by State to send medca
report to MHA
31.08.2012 -
25.03.2012
7 months
Deay by Presdent 7.08.2012 -
27.07.2013
1 year
Insofar as the deay s concerned, t cannot be
camed that the same s excessve though there s a deay
of one year n dsposa of mercy petton by the Presdent.
However, durng the perod of tra before the Sessons
court and even after convcton, the pettoner was
sufferng from menta ness. Ths s cear from the note
made by the Prson Superntendent who opned for
ateraton of pettoners sentence from death to fe. Ths
mportant aspect was not noted by the Home Mnstry.
244) Another reevant event whch was not notced by the
Home Mnstry whe consderng the notes for approva of
136
Page 137
the Presdent was that the pettoner fed SLP through
ega ad and ths Court dd not grant speca eave and
dsmssed the SLP in limine. As hghghted n the prevous
case, we reterate that n case of death sentence, t s
desrabe to examne a the materas on record frst hand
n accordance wth the tme-bound practce of ths Court
and arrve at an ndependent concuson on a the ssues
of fact and aw rrespectve of the fndngs of the tra court
and the Hgh Court. Such recourse was not adopted n
ths case. Ths was not hghghted n the notes prepared
for the approva of the Presdent. As stated earer, the
summary prepared by the Mnstry of Home Affars for the
Presdent fas to consder the menta ness as we as the
opnon offered by the Prson Superntendent n terms of
the M.P. Prson Manua as a ground for commutaton of
sentence. For a these reasons, more partcuary, wth
regard to hs menta ness, we fee that ends of |ustce
woud be met by commutng the sentence of death nto
fe mprsonment.
W3'$ P1$'$'/+ (C3-.) N/&. 13 #+7 141 /0 2013
245) Shvu - death convct, aged about 31 years,
137
Page 138
hang from Karnataka, has fed Wrt Petton (Cr.) No.
139 of 2013. |adeswamy, aged about 25 years, aso
hang from Karnataka, has fed Wrt Petton (Cr.) No.
141 of 2013. Both are chaengng the re|ecton of ther
mercy pettons on varous grounds. Accordng to them,
they are n custody for 11 years and 10 months.
246) Both the pettoners were convcted for an offence
under Sectons 302, 376 read wth Secton 34 IPC and
were sentenced to death. On 07.11.2005, the Karnataka
Hgh Court confrmed the pettoners death sentence. On
13.02.2007, ths Court dsmssed ther appea and uphed
the death sentence awarded to them.
247) On 27.02.2007, both the pettoners fed separate
mercy pettons addressed to the Governor of Karnataka
and the Presdent of Inda through the Prson
Superntendent.
248) On 21.03.2007, Respondent No. 1 wrote to
Respondent No. 2 requestng to consder pettoners
mercy pettons under Artce 161 of the Consttuton and,
n the event of re|ecton, to send the mercy petton aong
138
Page 139
wth the recommendatons, copes of the |udgments,
copes of the records of the case, etc. to Respondent No. 1
for consderaton under Artce 72 of the Consttuton.
249) On 05.04.2007 and 09.05.2007, revew pettons fed
by the pettoners were dsmssed.
250) On 10.08.2007, Respondent No. 2 nformed
Respondent No. 1 that the Governor has re|ected the
mercy pettons and forwarded the copy of the tra court
|udgment, the Supreme Court |udgment and mercy
pettons.
251) On 09.10.2007, Respondent No. 1 wrote to
Respondent No. 2 requestng hm to provde the |udgment
of the Hgh Court, the poce dary, the court proceedngs
and the Engsh transaton of the tra court |udgment.
Respondent No. 2 sent some of these documents on
26.07.2012, .e., after 4 years and 9 months and the
rest of the documents were sent on 03.12.2012, .e., after
5 years and 2 months. There was aso no expanaton as
to why Respondent No. 1 dd not take steps to expedte
the matter for such a ong perod.
139
Page 140
252) On 03.04.2013, Respondent No. 1 advsed the
Presdent to re|ect the mercy pettons. There was a deay
of 5 years and 8 months after the Governor re|ected the
mercy pettons.
253) On 27.05.2013, the Presdent returned the fe aong
wth the mercy pettons sent by Shvus mother and the
members of the Badrayyanha Gram Panchayat.
254) On 24.06.2013, Respondent No. 1 advsed the
Presdent to re|ect the mercy pettons. On 27.07.2013,
the Presdent re|ected the pettoners mercy pettons.
255) On 13.08.2013, the pettoners were nformed by the
prson authortes that ther mercy pettons have been
re|ected by the Presdent. On 16.08.2013, the oca poce
vsted the pettoners famy members and nformed that
they woud be executed at 6 a.m. on 22.08.2013 at
Begaum Centra Prson. The sad procedure was contrary
to the Prson Manua. As per the present Rues, the
executon can ony be schedued after 14 days of
nformng the prsoner of re|ecton of mercy petton and n
ths case the same was not beng foowed. The foowng
140
Page 141
are the detas regardng deay n dsposa of mercy
pettons by the Governor and the Presdent:
Tota custody perod t date 15.10.2001 -
17.12.2013
12 years 2
months
Perod under sentence of death 29.07.2005 -
17.12.2013
8 years 5
months
Tota deay n decdng mercy
pettons
27.02.2007 -
13.08.2013
6 years
Deay by the Governor 27.02.2007 -
10.08.2007
6 months
Deay by the Presdent 10.08.2007 -
13.08.2013
6 years
256) It s true that there s some expanaton n the
affdavt fed on behaf of the State n respect of the tme
taken by the Governor for re|ecton of ther mercy
pettons, however, there s no acceptabe/adequate
reason for deay of sx years at the hands of the Mnstry of
Home Affars foowed by the re|ecton order by the
Presdent.
257) Though earned counse has referred to the fact that
the tra court and the Hgh Court foowed certan
decsons whch were ater hed as #er incuriam, n vew of
the fact that there s undue deay of sx years whch s one
of the crcumstances for commutaton of sentence from
death to fe, we are not advertng to a other aspects.
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Page 142
258) We aso perused the records of the Mnstry of Home
Affars produced by earned ASG and the summary
prepared for approva of the Presdent. There s no
specfc expanaton n the summary prepared by the
Mnstry of Home Affars for the Presdent for the deay of
sx years. In vew of the same and n the ght of the
prncpes enuncated n varous decsons whch we have
adverted to n the earer part of our |udgment, we hod
that the pettoners have made out a case for
commutaton of sentence.
G2'71-'+1&C
259) In W.P (Cr) No 56 of 2013, Peopes Unon for
Democratc Rghts have peaded for gudenes for
effectve governng of the procedure of fng mercy
pettons and for the cause of the death convcts. It s we
setted aw that executve acton and the ega procedure
adopted to deprve a person of hs fe or berty must be
far, |ust and reasonabe and the protecton of Artce 21 of
the Consttuton of Inda nheres n every person, even
death-row prsoners, t the very ast breath of ther ves.
We have aready seen the provsons of varous State
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Page 143
Prson Manuas and the actua procedure to be foowed n
deang wth mercy pettons and executon of convcts. In
vew of the dspartes n mpementng the aready
exstng aws, we ntend to frame the foowng gudenes
for safeguardng the nterest of the death row convcts.
1. S/-'$#3. C/+0'+1)1+$: Ths Court, n Sunil +atra
-supra.( hed that sotary or snge ce confnement
pror to re|ecton of the mercy petton by the
Presdent s unconsttutona. Amost a the prson
Manuas of the States provde necessary rues
governng the confnement of death convcts. The
rues shoud not be nterpreted to run counter to the
above rung and voate Artce 21 of the
Consttuton.
2. L16#- A'7C There s no provson n any of the Prson
Manuas for provdng ega ad, for preparng appeas
or mercy pettons or for accessng |udca remedes
after the mercy petton has been re|ected. Varous
|udgments of ths Court have hed that ega ad s a
fundamenta rght under Artce 21. Snce ths Court
has aso hed that Artce 21 rghts nhere n a convct
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Page 144
t hs ast breath, even after re|ecton of the mercy
petton by the Presdent, the convct can approach a
wrt court for commutaton of the death sentence on
the ground of supervenng events, f avaabe, and
chaenge the re|ecton of the mercy petton and
ega ad shoud be provded to the convct at a
stages. Accordngy, Superntendent of |as are
drected to ntmate the re|ecton of mercy pettons
to the nearest Lega Ad Centre apart from ntmatng
the convcts.
3. P3/817231 '+ 4-#8'+6 $%1 )138. 41$'$'/+ ,10/31
$%1 P31&'71+$C The Government of Inda has framed
certan gudenes for dsposa of mercy pettons fed
by the death convcts after dsposa of ther appea
by the Supreme Court. As and when any such
petton s receved or communcated by the State
Government after the re|ecton by the Governor,
necessary materas such as poce records, |udgment
of the tra court, the Hgh Court and the Supreme
Court and a other connected documents shoud be
caed at once fxng a tme mt for the authortes
144
Page 145
for forwardng the same to the Mnstry of Home
Affars. Even here, though there are nstructons, we
have come across that n certan cases the
Department cas for those records n pece-mea or
one by one and n the same way, the forwardng
Departments are aso not adherng to the
procedure/nstructons by sendng a the requred
materas at one stroke. Ths shoud be strcty
foowed to mnmze the deay. After gettng a the
detas, t s for the Mnstry of Home Affars to send
the recommendaton/ther vews to the Presdent
wthn a reasonabe and ratona tme. Even after
sendng the necessary partcuars, f there s no
response from the offce of the Presdent, t s the
responsbty of the Mnstry of Home Affars to send
perodca remnders and to provde requred
materas for eary decson.
4. C/))2+'8#$'/+ /0 R1?18$'/+ /0 M138. P1$'$'/+
,. $%1 G/(13+/3C No prson manua has any
provson for nformng the prsoner or hs famy of
the re|ecton of the mercy petton by the Governor.
145
Page 146
Snce the convct has a consttutona rght under
Artce 161 to make a mercy petton to the Governor,
he s entted to be nformed n wrtng of the decson
on that mercy petton. The re|ecton of the mercy
petton by the Governor shoud forthwth be
communcated to the convct and hs famy n wrtng
or through some other mode of communcaton
avaabe.
5. C/))2+'8#$'/+ /0 R1?18$'/+ /0 $%1 M138.
P1$'$'/+ ,. $%1 P31&'71+$C Many, but not a, prson
manuas have provson for nformng the convct and
hs famy members of the re|ecton of mercy petton
by the Presdent. A States shoud nform the
prsoner and ther famy members of the re|ecton of
the mercy petton by the Presdent. Furthermore,
even where prson manuas provde for nformng the
prsoner of the re|ecton of the mercy petton, we
have seen that ths nformaton s aways
communcated oray, and never n wrtng. Snce the
convct has a consttutona rght under Artce 72 to
make a mercy petton to the Presdent, he s entted
146
Page 147
to be nformed n wrtng of the decson on that
mercy petton. The re|ecton of the mercy petton
by the Presdent shoud forthwth be communcated
to the convct and hs famy n wrtng.
6. D1#$% 8/+('8$& #31 1+$'$-17 #& # 3'6%$ $/ 3181'(1
# 8/4. /0 $%1 31?18$'/+ /0 $%1 )138. 41$'$'/+ ,.
$%1 P31&'71+$ #+7 $%1 G/(13+/3.
7. M'+')2) 14 7#.& +/$'81 0/3 1;182$'/+C Some
prson manuas do not provde for any mnmum
perod between the re|ecton of the mercy petton
beng communcated to the prsoner and hs famy
and the schedued date of executon. Some prson
manuas have a mnmum perod of 1 day, others
have a mnmum perod of 14 days. It s necessary
that a mnmum perod of 14 days be stpuated
between the recept of communcaton of the
re|ecton of the mercy petton and the schedued
date of executon for the foowng reasons:-
(a) It aows the prsoner to prepare hmsef mentay
for executon, to make hs peace wth god, prepare
147
Page 148
hs w and sette other earthy affars.
(b) It aows the prsoner to have a ast and fna
meetng wth hs famy members. It aso aows
the prsoners famy members to make
arrangements to trave to the prson whch may be
ocated at a dstant pace and meet the prsoner
for the ast tme. Wthout suffcent notce of the
schedued date of executon, the prsoners rght to
ava of |udca remedes w be thwarted and they
w be prevented from havng a ast and fna
meetng wth ther fames.
It s the obgaton of the Superntendent of |a to
see that the famy members of the convct receve
the message of communcaton of re|ecton of mercy
petton n tme.
8. M1+$#- H1#-$% E(#-2#$'/+C We have seen that n
some cases, death-row prsoners ost ther menta
baance on account of proonged anxety and
sufferng experenced on death row. There shoud,
therefore, be reguar menta heath evauaton of a
148
Page 149
death row convcts and approprate medca care
shoud be gven to those n need.
9. P%.&'8#- #+7 M1+$#- H1#-$% R14/3$&C A prson
manuas gve the Prson Superntendent the
dscreton to stop an executon on account of the
convcts physca or menta heath. It s, therefore,
necessary that after the mercy petton s re|ected
and the executon warrant s ssued, the Prson
Superntendent shoud satsfy hmsef on the bass of
medca reports by Government doctors and
psychatrsts that the prsoner s n a ft physca and
menta condton to be executed. If the
Superntendent s of the opnon that the prsoner s
not ft, he shoud forthwth stop the executon, and
produce the prsoner before a Medca Board for a
comprehensve evauaton and sha forward the
report of the same to the State Government for
further acton.
10. F23+'&%'+6 7/82)1+$& $/ $%1 8/+('8$C Most
of the death row prsoners are extremey poor and do
not have copes of ther court papers, |udgments, etc.
149
Page 150
These documents are must for preparaton of
appeas, mercy pettons and accessng post-mercy
|udca remedes whch are avaabe to the prsoner
under Artce 21 of the Consttuton. Snce the
avaabty of these documents s a necessary pre-
requste to the accessng of these rghts, t s
necessary that copes of reevant documents shoud
be furnshed to the prsoner wthn a week by the
prson authortes to assst n makng mercy petton
and pettonng the courts.
11. F'+#- M11$'+6 ,1$511+ P3'&/+13 #+7 %'&
F#)'-.: Whe some prson manuas provde for a
fna meetng between a condemned prsoner and hs
famy mmedatey pror to executon, many manuas
do not. Such a procedure s ntrnsc to humanty and
|ustce, and shoud be foowed by a prson
authortes. It s therefore, necessary for prson
authortes to factate and aow a fna meetng
between the prsoner and hs famy and frends pror
to hs executon.
12. P/&$ M/3$1) R14/3$&: Athough, none of the
150
Page 151
|a Manuas provde for compusory #ost mortem to
be conducted on death convcts after the executon,
we thnk n the ght of the repeated arguments by
the pettoners heren assertng that there s dearth
of experenced hangman n the country, the same
must be made obgatory.
In Deena alias Deen Dayal and Ors. vs. Union of
India (1983) 4 SCC 645, the pettoners theren
chaenged the consttutona vadty of Secton
354(5) on the ground that hangng a convct by rope
s a crue and barbarous method of executng death
sentence, whch s voatve of Artce 21 of the
Consttuton. Ths court hed as foows:-
"7. .After makng ths observaton Bhagwat, |.,
proceeds thus :
The physca pan and sufferng whch the
executon of the sentence of death nvoves s
aso no ess crue and nhuman. In Inda, the
method of executon foowed s hangng by the
rope. Eectrocuton or appcaton of etha gas
has not yet taken ts pace as n some of the
western countres. It s therefore wth reference
to executon by hangng that I must consder
whether the sentence of death s barbarc and
nhuman as entang physca pan and agony. It
s no doubt true that the Roya Commsson on
Capta Punshment 1949-53 found that hangng
151
Page 152
s the most humane method of executon and so
aso n Ichkawa v. |apan, the |apanese Supreme
Court hed that executon by hangng does not
correspond to crue punshment nhbted by
Artce 36 of the |apanese Consttuton. But
whether amongst a the methods of executon,
hangng s the most humane or n vew of the
|apanese Supreme Court, hangng s not crue
punshment wthn the meanng of Artce 36,
one thng s cear that hangng s undoubtedy
unaccompaned by ntense physca torture and
pan." (emphass supped).
81. Havng gven our most anxous
consderaton to the centra pont of nqury, we
have come to the concuson that, on the bass
of the matera to whch we have referred
extensvey, the State has dscharged the heavy
burden whch es upon t to prove that the
method of hangng prescrbed by Secton 354(5)
of the CrPC does not voate the guarantee rght
contaned n Artce 21 of the Consttuton. T%1
)#$13'#- ,10/31 2& &%/5& $%#$ $%1 &.&$1)
/0 %#+6'+6 5%'8% '& +/5 '+ (/621 8/+&'&$&
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#+.$%'+6 $%#$ 5/2-7 2++181&&#3'-.
&%#341+ $%1 4/'6+#+8. /0 $%1 43'&/+13E&
#4431%1+&'/+. T%1 8%#+81& /0 #+ #88'71+$
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/0 # -'+613'+6 71#$%. U+8/+&8'/2&+1&&
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1;182$'/+ '& 8/+728$17 5'$% 7181+8. #+7
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152
Page 153
It s obvous from a readng of the aforesad decson that
the method of hangng prescrbed by Secton 354(5) of the
Code was hed not voatve of the guaranteed rght under
Artce 21 of the Consttuton on the bass of scentfc
evdence and opnons of emnent medca persons whch
assured that hangng s the east panfu way of endng the
fe. However, t s the contenton of earned counse for
the respondents that owng to dearth of experenced
hangman, the accused are beng hanged n voaton of
the due procedure.
260) By makng the performance of #ost mortem
obgatory, the cause of the death of the convct can be
found out, whch w revea whether the person ded as a
resut of the dsocaton of the cervca vertebrate or by
stranguaton whch resuts on account of too ong a drop.
Our Consttuton permts the executon of death sentence
ony through procedure estabshed by aw and ths
procedure must be |ust, far and reasonabe. In our
consdered vew, makng #ost mortem obgatory w
ensure |ust, far and reasonabe procedure of executon of
153
Page 154
death sentence.
C/+8-2&'/+C
261) In the aforesad batch of cases, we are caed upon to
decde on an evovng |ursprudence, whch Inda has to ts
credt for beng at the forefront of the goba ega arena.
Mercy |ursprudence s a part of evovng standard of
decency, whch s the hamark of the socety.
262) Certany, a seres of Consttuton Benches of ths
Court have uphed the Consttutona vadty of the death
sentence n Inda over the span of decades but these
|udgments n no way take away the duty to foow the due
procedure estabshed by aw n the executon of
sentence. Lke the death sentence s passed awfuy, the
executon of the sentence must aso be n consonance
wth the Consttutona mandate and not n voaton of the
consttutona prncpes.
263) It s we estabshed that exercsng of power under
Artce 72/161 by the Presdent or the Governor s a
consttutona obgaton and not a mere prerogatve.
Consderng the hgh status of offce, the Consttutona
154
Page 155
framers dd not stpuate any outer tme mt for dsposng
the mercy pettons under the sad Artces, whch means t
shoud be decded wthn reasonabe tme. However, when
the deay caused n dsposng the mercy pettons s seen
to be unreasonabe, unexpaned and exorbtant, t s the
duty of ths Court to step n and consder ths aspect. Rght
to seek for mercy under Artce 72/161 of the Consttuton
s a consttutona rght and not at the dscreton or whms
of the executve. Every Consttutona duty must be
fufed wth due care and dgence; otherwse |udca
nterference s the command of the Consttuton for
uphodng ts vaues.
264) Remember, retrbuton has no Consttutona vaue n
our argest democratc country. In Inda, even an accused
has a de facto protecton under the Consttuton and t s
the Courts duty to shed and protect the same.
Therefore, we make t cear that when the |udcary
nterferes n such matters, t does not reay nterfere wth
the power exercsed under Artce 72/161 but ony to
uphod the de facto protecton provded by the
Consttuton to every convct ncudng death convcts.
155
Page 156
265) In the ght of the above dscusson and observatons,
we dspose of the wrt pettons. In the cases of Suresh,
Ram|, Bavendran, Smon, Gnanprakasam, Madah,
Praveen Kumar, Gurmeet Sngh, Sona, San|eev, Sundar
Sngh, |afar A, Magan La Beraa, Shvu and |adeswamy,
we commute the death sentence nto mprsonment for
fe. A the wrt pettons are, accordngy, aowed on the
above terms.
..............C|I.
(P. SATHASIGAM)

...............|.
(RANJAN GOGOI)


.................|.
(SHIGA HIRTI SINGH)
NEW DELHI;
|ANUARY 21, 2014.
156