Smt. Triveniben Vs. State of Gujarat

Appeal: Writ Petition (Crl.) No. 1566 of 1985.

Petitioner: Smt. Triveniben

Respondent: State of Gujarat

Apeal: Writ Petition (Crl.) No. 1566 of 1985.

Judges: G.L. OZA, MURARI MOHON DUTT, K.N. SINGH, K. JAGANNATHA SHETTY & L.M. SHARMA, JJ.

Date of Judgment: Feb 07, 1989

Mr. K. Parasaran, Attorney General, Ms. Urmila Sirur, A.C., Mr. M.N. Shroff, Mr. A.K. Goel, Ms. Malini Poduvel, Mr. A.V. Rangam, Mr. Lalit Kumar Gupta, AC, Mr. S.K. Bhattacharya, Ms. Sushma Suri, Ms. Jaimala Singh, Mr. R.P. Singh, Mr. Mahabir Singh, Mr. M.M. Johari, Mr. N.D. Garg, Mr. R.S. Suri, Mr. Sanjay Parekh, Advocates for the parties.

CRIMINAL LAW

Death Sentence

Death sentence – Constitutionality of – Provisions of Section 302 of Indian Penal Code violate neither the letter nor the ethos of Article 19 of the Constitution.
(Bachan Singh etc. etc. v. State of Punjab etc. etc., 1983 (1) SCR 145 – Affirmed)

Death sentence – Execution of – Delay in – What should be the starting point for computing this delay? – Held that the delay which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the apex court is pronounced i.e. when the judicial process has come to an end – The only delay which would be material for consideration will be the delay in disposal of mercy petitions or delays occurring at the instance of the Executive – Indian Penal Code; 1860, Section 302.

(Per Oza, J. (for himself, Murari Mohon Dutt, K.N. Singh, L.M. Sharma, JJ.))

(i) Even in this Court although there does not appear to be a specific rule but normally these matters are given top priority. Although it was contended that this reference before us – Bench of five-Judges, was listed for hearing after a long interval of time. We do not know why this reference could not be listed except what is generally well-known the difficulty of providing a Bench of five-Judges but ordinarily it is expected that even in this Court the matters where the capital punishment is involved will be given top priority and shall be heard of and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any Court before final adjudication even the person who has been condemned or who has been sentenced to death has a ray of hope. It therefore could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms-Day. The delay therefore which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the apex court is pronounced i.e. when the judicial process has come to an end.(Para 16)

(ii) After the matter is finally decided judicially, it is open to the person to approach the President or the Governor, as the case may be, with a mercy petition. Sometimes person or at his instance or at the instance of some of his relatives, mercy petition and review petitions are filed repeatedly causing undue delay in execution of the sentence. It was therefore contended that when such delay is caused at the instance of the person himself he shall not be entitled to gain any benefit out of such delay. It is no doubt true that sometimes such petitions are filed but a legitimate remedy if available in law, a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that alone will be a matter attracting the jurisdiction of this Court, to consider the question of the execution of the sentence. While considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself however shall not be considered. The only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the Executive.(Para 17)

(iii) So far as the scope of the authority of President and the Governor while exercising jurisdiction under Article 72 and Article 161 are concerned the question is not at all relevant so far as the case in hand is concerned. But it must be observed that when such petitions under Article 72 or 161 are received by the authorities concerned it is expected that these petitions shall be disposed of expeditiously.(Para 18)

(Per K. Jagannatha Shetty, J.)

(iv) The time taken in the judicial proceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry-up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sentencing or the appellate court while disposing of the appeal may consider the delay and the cause thereof along with other circumstances. The court before sentencing is bound to hear the parties and take into account every circumstance for and against the accused. If the court awards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence save by way of review. There cannot be a second trial on the validity of sentence based on Article 21. The execution which is impugned is execution of a judgment and not apart from judgment. If the judgment with the sentence awarded is valid and binding, it falls to be executed in accordance with law since it is a part of the procedure established by law. Therefore, if the delay in disposal of the case is not a mitigating circumstance for lesser sentence, it would be, in my opinion, wholly inappropriate to fall back upon the same delay to impeach the execution.(Para 71)

(v) If the delay in passing the sentence cannot render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional. Much less any fixed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fix any period of limitation for execution on the ground that it would be a denial of fairness in procedure under Article 21. With respect, I am unable to agree with the view taken in Vatheeswaran case on this aspect.(Para 72)

(vi) As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one. This mental torment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned prisoner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed.(Para 75)

(vii) It is necessary to emphasise that the jurisdiction of the Court at this stage is extremely limited. If the Court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay. The matter, therefore, must be expeditiously and on top priority basis, disposed of. The Court while examining the matter, for the reasons already stated, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The Court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under Article 226 or under Article 32 of the Constitution after the final judgment affirming the conviction and sentence. The Court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay, may be a significant factor, but that by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself.(Para 76)

1.A.R. Antulay v. R.S. Nayak and another, JT 1988 (2) 325 SC = AIR 1988 SC 1531 = 1988 (2) SCC 602 – Followed.
2. Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, 1985 (2) SCR 8.
3. Machhi Singh and others v. State of Punjab, 1983 (3) SCC 470.
4. Sher Singh & Others v. The State of Punjab, 1983 (2) SCC 582 – Affirmed.
5. T.V. Vatheeswaran v. State of Tamil Nadu, 1983 (2) SCR 348 – Overruled.
6. Mithu v. State of Punjab, 1983 (2) SCC 277.
7. Bachan Singh etc. etc. v. State of Punjab etc. etc., 1983 (1) SCR 145 – 1980 (2) SCC 684Affirmed.
8. Kadra Pahadiya v. State of Bihar, 1981 (3) SCC 671 and 1983 (2) SCC 104.
9. State of U.P. v. Sahai, AIR 1981 SC 1442.
10. Sunil Batra v. Delhi Administration, 1979 (1) SCR 392 – Relied.
11. Ram Adhar v. State of U.P., 1979 (3) SCC 774.
12. Hussainara Khatoon v. The State of Bihar, 1979 (3) SCR 169 and 1980(1) SCC 81.
13. Sunil Batra v. Delhi Administration, 1978 (4) SCC 494.
14. State of Uttar Pradesh v. Lalla Singh and others, 1978 (1) SCC 142.
15. Maneka Gandhi v. Union of India, 1978 (1) SCC 248.
16. Sadhu Singh v. State of U.P., AIR 1978 SC 1506 = 1978 (4) SCC 428.
17. Joseph Peter v. State of Goa, Daman & Diu, 1977 (3) SCR 771.
18. State of U.P. v. Ram Chandra Trivedi, 1977 (1) SCR 462 = AIR 1976 SC 2547 – Cited.
19. Union of India v. K.S. Subramanian, 1977 (1) SCR 87 = AIR 1976 SC 2433 – Cited.
20.Lajar Mashi v. State of U.P., 1976(1) SCC 806.
21. Nachhittar Singh v. State of Punjab, 1975 (3) SCC 266.
22. Maghar Singh v. State of Punjab, 1975 (4) SCC 234.
23. Mattulal v. Radhey Lal, 1975 (1) SCR 127 = AIR 1974 SC 1596 – Cited.
24. Nethi Sreeramulu v. State of A.P., 1974 (3) SCC 314.
25. E.P. Rayappa v. State of Tamil Nadu, 1974 SCR 348 = 1974 (4) SCC (L&S) 165.
26. State of U.P. v. Paras Nath Singh & Ors., 1973 (3) SCC 647.
27. Vivian Rodrick v. The State of West Bengal, 1971 (1) SCR 468.
28. Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr., 1966 (3) SCR 744 – Followed.
29. The State of West Bengal v. Anwar Ali, 1952 SCR 284.
30. Piare Dusadh and others v. The King Emperor, 1944 Federal Court Reports 61.

Foreign Cases Referred:

1. Trop. v. Dulles, 356 US 86, 101 (1958).
2. Furman v. Georgia, 408 US 238.

Books, Treatises & Articles Referred:

Allen, Harry E. and Others : Crime and Punishment, p.735.
Arvindo : Tales of Prison Life.
Graeme Newman : Just and Painful, p.127.
Harward : Law Review, 1986 Vol. 99 p.1699.
Law Commission of India : 35th Report, para 265(18).
Newman, Graeme : Just and Painful, p.127.
Radzinowicz, L. : History of English Criminal Law, V(1), p.1.
Scott, G.R. : The History of Corporal Punishment, 1948, pp.39-56.
The History of Capital Punishment, 1950, PP.38-66.
Stephen : History of the Criminal Law of England, Ch.XIII, pp.477-478.

OZA, J.:
1. These matters came up before us because of the conflict in the two decisions of this Court: i) T.V. Vatheeswaran v. State of Tamil Nadu 1983 (2) SCR 348, Sher Singh & Others v. The State of Punjab 1983 (2) SCR 582 and observations in the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra 1985 (2) SCR 8. In Vatheeswaran’s case a Bench of two Judges of this Court held that two years delay in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life. The Court observed that:
“Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art. 21 and demand the quashing of the sentence of death.”
2. In Sher Singh’s case which was a decision of a three Judges’ Bench it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is not good enough for commutation and two years rule could not be laid down in cases of delay. It was held that the Court in the context of the nature of offence and delay could consider the question of commutation of death sentence. The Court observed:
“Apart from the fact that the rule of two years run in the teeth of common experience as regards the time generally occupied by proceedings in the High Court, the Supreme Court and before the executive authorities. We are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprisonment. There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated. A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid of the sentence of death imposed upon him and indeed, there is no one, be he blind, lame, starving or suffering from a terminal illness, who does not want to live.”
It was further observed:
“Finally, and that is no less important, the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed. The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years’ formula, as a matter of “quod erat demonstrandum”.
3. In Javed’s case it was observed that the condemned man who had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records, this period, of two years and nine months with the sentence of death heavily weighing on his mind will entitle him for commutation of sentence of death into imprisonment for life. It is because of this controversy that the matter was referred to a five-Judges’ Bench and hence it is before us.
4. Learned counsel for the petitioners at length has gone into the sociological, humane and other aspects in which the question of sentence of death has been examined in various decisions and by various authors. It is however not disputed that in Bachan Singh etc. etc. v. State of Punjab etc. etc. 1983 (1) SCR 145 constitutionality of sentence of death has been upheld by this Court. Learned counsel has at length referred to the opinion of Hon. Mr. Justice P.N. Bhagwati, as he then was, which is the minority opinion in Bachan Singh’s case 1983 (1) SCR 145. In his opinion Justice P.N. Bhagwati has conducted a detailed research and has considered the material about the various aspects of sentence of death. Learned Attorney General appearing for the respondents also referred to some portions of the judgment but contended that howsoever condemned the sentence may be but its constitutional validity having been accepted by this Court all this study about looking at it from various angles is not of much consequence. He also contended that the opinion has been drifting and the statistics reveal that at one time there was a trend towards abolition of death sentence and then a reverse trend started and therefore all this, so far as the present case is concerned, is not necessary. One of the contentions advanced by learned counsel for the petitioners was that apart from all other considerations it is clear that this is a sentence which if executed is not reversible and even if later on something so glaring is detected which will render the ultimate conclusion to be erroneous the person convicted and executed could not be brought back to life and it was on this basis that it was contended that although the law provides for the sentence and it has been held to be constitutional but still the Courts should be slow in inflicting the sentence and in fact it was contended that courts are in fact slow in awarding the sentence. In Bachan Singh’s case it was observed:
“To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code, on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners’ argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelised through the people’s representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent Reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder another capital offences were before the Parliament and presumably considered by it when in 1972-73 it took up revision of the Code of 1898, and replaced it by the Code of Criminal Procedure, 1973, it cannot be said that the provision of death penalty as an alternative punishment for murder, in section 302, Penal Code, is unreasonable and not in public interest. Therefore, the impugned provision in section 302, violates neither the letter nor the ethos of Article 19.”
We are in entire agreement with he view expressed above.
5. It is not necessary to go into the jurisprudential theories of punishment deterrent or retributive in view of what has been laid down in Bachan Singh’s case with which we agree but the learned counsel at length submitted that the modern theorists of jurisprudence have given go-bye to the retributive theory of punishment although in some countries it is recognised on a different principle i.e. to pacify the public anger whereas some theorists have tried to put both the theories together. So far as the deterrent theory of punishment is concerned even about that doubts have been expressed as regards the real deterrent effect of punishment. The absence of deterrent effect has been attributed to various causes sometimes long delay itself as public memory is always short. When the convict is ultimately sentenced and executed people have forgotten the offence that he has committed and on this basis it is sometimes felt that it has lost its importance. In the present case we are not very much concerned with all these questions except to some extent the question of delay and its effect.
6. It was also contended that this sentence is a sentence which is irreversible thereby meaning that if ultimately some mistake in convicting and execut-ing the sentence is detected after the sentence is executed there is no pos-sibility of correction. After all the criminal jurisprudence which is in vogue in our system even otherwise eliminates all possibilities of error as benefit of doubt at all stages goes in favour of accused. Apart from it there are only a few offences where sentence of death is provided and there too the manner in which the law has now been changed ultimately the sentence of death is awarded in the rarest of rare case. Therefore not much could be made of the possibili-ty of an error.
7. The offences in which sentence of death is provided are under Sections 120-B (in some cases), 121, 132, 302, 307 (in some cases) and 396.
8. The Law as it stood before before 1955 the Court was expected to give reasons if it chose not to pass a sentence of death as normally sentence of death was the rule and alternative sentence of imprisonment of life could only be given for special reasons. As Section 367 clause (5) in the Code of Crimi-nal Procedure, 1898 stood:
“If the accused is convicted for an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reasons why the sentence of death was not passed.”
Section 367 clause (5) of Cr.P.C. was amended in 1955 and after the amendment discretion was left to the courts to give either sentence. Section 367 clause (5) after the amendment reads:
“In trials by jury, the Court need not write a judgment, but the Court of Session shall record the heads of the charge to the jury:
Provided that it shall not be necessary to record such heads of the charge in cases where the charge has been delivered in English and taken down in shorthand.”
Thus the Legislature dropped that part of the sub-clause which made it necessary for the Court to state reasons for not awarding sentence of death. Thus after the amendment the legal position was that it was the discretion of the Court to award either of the sentences.
9. In the Code of Criminal Procedure, 1973 Section 354 clause (3) has now been introduced and it has been provided that in all cases of murder, life imprisonment should be given unless there are special reasons for giving sentence of death. This provision Sec. 354 clause (3) reads:
“When the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment of a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”
It is thus clear that before 1955 sentence of death was the rule, the alternative sentence had to be explained by reasons. Thereafter it was left to the discretion of the court to inflict either of the sentences and ultimately in the 1973 Code normal sentence is imprisonment for life except for the special reasons to be recorded sentence of death could be passed. It is therefore clear that this indicates a trend against sentence of death but this coupled with the decisions ultimately wherein sentence of death has been accepted as constitutional go to show that although there is a shift from sentence of death to lesser sentence but there is also a clear intention of maintaining this sentence to meet the ends of justice in appropriate cases. It is therefore clear that in spite of the divergent trends in the various parts of the World there is a consistent thought of maintaining the sentence of death on the statute book for some offences and in certain circumstances where it may be thought necessary to award this extreme penalty. As stated generally that it is awarded in the rarest of rare cases and in this accepted position of law, in our opinion, it is not necessary to go into the academic question about sociological and humans aspects of the sentence and detailed examination of the jurisprudential theories.
10. It was also contended though not very seriously that in ultimate analysis out of the two sentences imprisonment for life or death it has been left to the discretion of the courts. On the one hand it was suggested that there are no norms laid down for exercise of discretion but on the other hand it was also admitted that it is very difficult to lay down any hard and fast rule and apparently both the sides realised that the attempt that was made by this Court in enumerating some of the circumstances but could not lay down all possible circumstances in which the sentence could be justified. In Machhi Singh and others v. State of Punjab 1983 (3) SCC 470 it was observed that:
“In the background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case:
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised.
In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.”
11. In ultimate analysis it could not be disputed and was not seriously disputed that the circumstances in which the extreme penalty should be inflicted cannot be enumerated in view of complex situation in society and the possibilities in which the offence could be committed and in this context in ultimate analysis it is not doubted that the Legislature therefore was right in leaving it to the discretion of the judicial decision as to what should be the sentence in particular circumstances of the case. But the Legislature has put a further rider that when the extreme penalty is inflicted it is necessary for the court to give special reasons thereof.
12. In the matter before us we are mainly concerned with a) delay in execution of the sentence of death; (b) what should be the starting point for computing this delay?; (c) what are the rights of a condemned prisoner who has been sentenced to death but not executed? and d) what could be the circum-stances which could be considered alongwith the time that has been taken before the sentence is executed.
13. The main theme of the arguments on the basis of delay has been the inhuman suffering which a condemned prisoner suffers waiting to be executed and the mental torture it amounts to and it is in this background also that the parties argued at length about the starting point which should be considered for computing delay in execution of the sentence. On the one hand according to the petitioners the mental torture commences when the trial court i.e. the Session Court pronounces the judgment and awards capital punishment. However, learned counsel also conceded that even the condemned prisoner knows that the judgment pronounced by the Sessions Court in the case of capital punishment is not final unless confirmed by the High Court. Mainly therefore it was contended that the real mental torture commences after the death sentence is confirmed by the High Court and therefore to consider the question of delay the time should be computed from the date of the High Court judgment. On the other hand learned Attorney General contended that even if the judgment of confirmation by the High Court is passed in which capital punishment is awarded, invariably comes to this Court and this Court ordinarily grants leave and appeals are heard at length and it was therefore contended that the delay in execution of the sentence really could be considered after the pronouncement of the final verdict by this Court and it is only after the final verdict is pronounced that it could be said that the judicial process has concluded. It is no doubt true that sometimes in these procedures some time is taken and sometimes even long time is spent. May be for unavoidable circumstances and sometimes even at the instance of the accused but it was contended and rightly so that all this delay upto the final judicial process is taken care of while the judgment is finally pronounced and it could not be doubted that in number of cases considering the time that has elapsed from the date of the offence till the final decision has weighed with the courts and lesser sentence awarded only on this account.
14. As early as in 1944, the Federal Court in Piare Dusadh and others v The King Emperor ,1944 Federal Court Reports 61 observed:
“It is true that death sentences were imposed in these cases several months ago, that the appellants have been lying ever since under the threat of execution, and that the long delay has been caused very largely by time taken in proceedings over legal points in respect of the constitution of the courts before which they were tried and of the validity of the sentences themselves. We do not doubt that this court has power, where there has been inordinate delay in executing death sentences in cases which come before it, to allow the appeal in so far as death sentence is concerned and sub- stitute a sentence of transportation for life on account of the time factor alone, however, right the death sentence was at the time when it was originally imposed.”
Similarly in State of Uttar Pradesh v Lalla Singh and others, (1978) 1 SCC 142, Sadhu Singh v State of U.P.AIR 1978 SC 1506, State of U.P. v Sahai AIR 1981 SC 1442, and Joseph Peter v State of Goa, Daman & Diu (1977) 3 SCR 771, while finally deciding the matter the courts have taken notice of the delay that has occurred in the judicial process.
15. It was contended that Article 21 contemplates not only a fair procedure but also expeditious procedure and in this context it was contended that observations be made so that judicial process also is concluded as expe-ditiously as possible. Learned Attorney General has filed compilation of rules of various High Courts and it is not disputed that practically in all the High Courts, a confirmation case where the sentence of death is awarded by the Sessions Court and the case is pending in the High Court for confirmation time bound programme is provided in the rules and it could be said that except on some rare occasion the High Court has disposed of a confirmation case between six months to one year and therefore it could not be said that there is no procedure provided for expeditious disposal of these cases. At the Sessions level also the normal procedure of the Sessions trial is that it is taken up day to day although after coming into force of the Code of Criminal Procedure in 1973 where the number of offences triable by the Sessions Court have been increased but there is sometimes a slight departure from the normal rule which is the cause to some extent for some slackness in the Sessions trial but attempt is always made and it is expected that Sessions case where offences alleged is one which is punishable with death should be given top priority and normally it is given top priority and it is expected that the trials must continue day to day unless it is concluded. Although it is well-known that sometimes it is at the instance of the advocates appearing for defence also that this normal rule is given a go-bye but ordinarily it is expected that these cases must be tried expeditiously and disposed of.
16. Even in this Court although there does not appear to be a specific rule but normally these matters are given top priority. Although it was contended that this reference before us – Bench of five-Judges, was listed for hearing after a long interval of time. We do not know why this reference could not be listed except what is generally well-known the difficulty of providing a Bench of five-Judges but ordinarily it is expected that even in this Court the matters where the capital punishment is involved will be given top priority and shall be heard of and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any Court before final adjudication even the person who has been condemned or who has been sentenced to death has a ray of hope. It therefore could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms-Day. The delay therefore which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the apex court is pronounced i.e. when the judicial process has come to an end.
17. After the matter is finally decided judicially, it is open to the person to approach the President or the Governor, as the case may be, with a mercy petition. Sometimes person or at his instance or at the instance of some of his relatives, mercy petition and review petitions are filed repeatedly causing undue delay in execution of the sentence. It was therefore contended that when such delay is caused at the instance of the person himself he shall not be entitled to gain any benefit out of such delay. It is no doubt true that sometimes such petitions are filed but a legitimate remedy if available in law, a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that alone will be a matter attracting the jurisdiction of this Court, to consider the question of the execution of the sentence. While considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself however shall not be considered. The only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the Executive.
18. So far as the scope of the authority of President and the Governor while exercising jurisdiction under Article 72 and Article 161 are concerned the question is not at all relevant so far as the case in hand is concerned. But it must be observed that when such petitions under Article 72 or 161 are received by the authorities concerned it is expected that these petitions shall be disposed of expeditiously.
19. It was also contended that when capital punishment is awarded the sentence awarded is only sentence of death but not sentence of death plus imprisonment and therefore if a condemned prisoner has to live in jail for long in substance it amounts to punishment which is sentence of death and imprisonment for some time and this according to the learned counsel will amount to double jeopardy which is contrary to Article 20 and the imprisonment cannot be justified in law. Section 366 of the Code of Criminal Procedure provides:
“366. Sentence of death to be submitted by Court of Session for confirmation – (1) When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.
(2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant.”
This no doubt authorises the Court of Sessions to commit a person sentenced to death to jail custody under a warrant. But this Section does not contemplate how long he has to be in jail. Clause (1) of Section 366 provides that when the Court of Sessions passes a sentence of death the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court. It is therefore apparent that sub-clause (2) provided for committing the convicted person to jail awaiting the confirmation of the sentence by the High Court. It is also clear that when a person is committed to jail awaiting the execution of the sentence of death, it is not imprisonment but the prisoner has to be kept secured till the sentence awarded by the court is executed and it appears that it is with that purpose in view that sub-clause (2) of Section 366 simply provided for committing the convicted person to jail custody under a warrant.
20. The question about solitary confinement or keeping the condemned prisoner alone under strict guard as provided in various jail manuals was considered by this Court in Sunil Batra v. Delhi Administration 1979 (1) SCR 392 and consid-ering the question of solitary confinement it was observed:
“In our opinion sub-s.(2) of S.30 does not empower the jail authorities in the garb of confining a prisoner under sentence of death, in a cell apart from all other prisoners, to impose solitary confinement on him. Even jail discipline inhibits solitary confinement as a measure of jail punishment. It completely negatives any suggestion that because a prisoner is under sentence of death therefore and by reason of that consideration alone, the jail authorities can impose upon him additional and separate punishment of solitary confinement. They have no power to add to the punishment imposed by the Court which additional punishment could have been imposed by the Court itself but has in fact been not so imposed. Upon a true construction, sub-s. (2) S.30 does not empower a prison authority to impose solitary confinement upon a prisoner under sentence of death.”
In the same judgment, it was further observed:
“What then is the nature of confinement of a prisoner who is awarded capital sentence by the Sessions Judge and no other punishment from the time of sentence till the sentence becomes automatically executable? Section 366(2) of the Cr.P.C. enable the Court to commit the convicted person who is awarded capital punishment to jail custody under a warrant. It is implicit in the warrant that the prisoner is neither awarded simple nor rigorous imprisonment. The purpose behind enacting sub-s.(2) of S.366 is to make available the prisoner when the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sentence as and when that situation arises. After the sentence becomes executable he may be kept in cell apart from other prisoners with a day and night watch. But even here, unless special circumstances exist, he must be within the sight and sound of other prisoners and be able to take food in their company.
If the prisoner under sentence of death is held in jail custody, punitive detention cannot be imposed upon him by jail authorities except for prison offences. When a prisoner is committed under a warrant for jail custody under s.366(2) Cr.P.C. and if he is detained in solitary confinement which is a punishment prescribed by s. 73 IPC, it will amount to imposing punishment for the same offence more than once which would be violative of Article 20(2). But as the prisoner is not to be kept in solitary confinement and the custody in which he is to be kept under s.30(2) as interpreted by us would preclude detention in solitary confinement, there is no chance of imposing second punishment upon him and therefore, S.30(2) is not violative of Article 20.”
21. It is therefore clear that the prisoner who is sentenced to death and is kept in jail custody under a warrant under Section 366(2) he is neither serv-ing rigorous imprisonment nor simple imprisonment. In substance he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence which has been awarded and in this view the aspect of solitary confinement has already been dealt with in the above noted case but it must be said that the life of the condemned prisoner in jail awaiting execution of sentence must be such which is not like a prisoner suffering the sentence but it is also essential that he must be kept safe as the purpose of the jail custody is to make him available for execution after the sentence is finally confirmed.
22. It was contended that the delay in execution of the sentence will entitle a prisoner to approach this Court as his right under Article 21 is being infringed. It is well-settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr. 1966 (3) SCR 744 and also in A.R. Antulay v. R.S. Nayak and another 1988 (2) SCC 602, the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also.
23. So far as our conclusions are concerned we had delivered our Order on October 11, 1986 and we had reserved the reasons to be given later. Accordingly in the light of the discussions above our conclusion is as recorded in our Order dated October 11, 1988, reproduced below:
“Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the Court while finally maintaining the sentence of death. This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran’s case cannot be said to lay down the correct law and therefore to that extent stands overruled.”
JAGANNATHA SHETTY,J.:
24. In Bachan Singh v. State of Punjab (1980 (2) SCC 684), this Court pronounced that the provision of death penalty as an alternative punishment for murder, under sec.302 IPC is valid and constitutional. Sarkaria,J. who spoke for the majority view held that the provisions relating to imposition of death sentence and the procedure prescribed thereof would ensure fairness and reasonableness within the scope of Article 21. It was also observed that by no stretch of imagination it can be said that death penalty under sec.302 either per se or because of execution by hanging constitutes an unreasonable, cruel or unusual punishment. Nor the mode of its execution has a degrading punishment which would defile the “dignity of the individual” within the preamble to the Constitution. The learned Judge, however, cautioned (at 751):
“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s
instrumentality. That ought not to be done savein the
rarest of rarecases when the alternative option is unquestionable
foreclosed.”(Emphasis supplied)
25.Bachan Singh case has thus narrowly tailored the sentencing discretion of courts as to death sentence. Death sentence cannot be given if there is any mitigating circumstance in favour of the accused. All circumstances of the case should be aggravating. It is in the gravest of grave crimes or in the rarest of rare cases, the death sentence may be awarded. There is no offence in the penal code carrying mandatory death penalty. Section 303 IPC carrying the mandatory punishment has been declared unconstitutional in Mithu vs. State of Punjab (1983 (2) SCC 277). So much so, the death sentence is now awarded only in miniscule number of cases.
26. All the accused in these cases belong to that limited and exceptional category. The trial court convicted them under sec.302 IPC and sentenced them to death. The igh Court confirmed their conviction and sentence. This Court dismissed their special leave petitions or appeals and subsequent review petitions. Their mercy petitions to the President and/or the Governor were also rejected. They have now moved writ petitions under Article 32 of the Constitution. They are not seeking to overturn the death sentence on the ground that the Court has illegally inflicted it. Obviously, that they can not do. The judgment of the court has become final. Under Article 141, it shall be binding on all Courts. Under Article 142, it shall be enforceable throughout the territory of India. Under Article 144 all authorities, civil and judicial, in the territory of India shall act in aid of this Court. The judicial verdict pronounced by court in relation to a matter cannot be challenged on the ground that it violates one’s fundamental right. The judgment of a court cannot be said to affect the fundamental rights of citizens (See Naresh Sridhar Mirajkar case 1963 (3) SCR 744).
27. The petitioners, however, contend that this Court must set aside the death penalty and substitute a sentence of life imprisonment in view of the prolonged delay in the execution. The dehumanising factor of prolonged delay with the mental torture in solitary confinement in jail, according to them, has rendered the execution unconstitutional under Article 21. There are also some other subsidiary contentions to which I will presently refer.
28. We have earlier dismissed all but one petition giving our unanimous conclusion stating therein that we would give our reasons later. ere are my own reasons in support of that conclusion:
29. The question whether prolonged delay renders death sentence inexecutable and entitles the accused to demand the alternate sentence of life imprisonment has arisen amid the diversity of judicial decisions in (i) T.V. Vatheeswaran v. State of Tamil Nadu (1983 (2) SCR 348); (ii) Sher Singh v. State of Punjab (1983 (2) SCR 582); and (iii) Javed Ahmed Abdul amid Pawala v. State of Maharashtra (1985 (2) SCR 8). Vatheeswaran case was decided by a two Judge Bench, where Chinnappa Reddy, J. said (at 359):
“We find no impediment in holding that the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law. The appropriate relief in such a case is to vacate the sentence of death.”
There then the learned Judge said (at 360):
“Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitled the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death.”
30.Sher Singh case was decided by a three Judge Bench. Chandrachud,CJ., who spoke for the Bench while disagreeing with above view in Vatheeswaran, said (at 595):
“The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years’ formula, as a matter of “quod erat demonstrandum”.
31. Then followed the decision in Javed Ahmad case. There Chinnappa Reddy,J. raised a question whether a three Judge Bench could overrule the decision of a two Judge Bench merely because three is larger than two? The learned Judge said:
“The Court sits in division of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges. Vide Young v. Bristol Aeroplane Co.Ltd. It may be otherwise where a full Bench does so. We do not, however, desire to embark upon this question in this case. In the present case, we are satisfied that an overall view of all the circumstances appears to us to entitle the petitioner to invoke the protection of Article 21 of the Constitution. We accordingly quash the sentence of death and substitute in its place the sentence of imprisonment for life.”
32. The question posed in Javed Ahmad case relates to the practice and procedure of this Court. It presents little problem and could be conveniently disposed of without much controversy. At the time of framing the Constitution, Mr.B.N. Rau, after his return from United States reported to the president of the Constitution Assembly as follows:
“Again, Justice Frankfurter was very emphatic that any jurisdiction, exercisable by the Supreme Court, should be exercised by the full Court. is view is that the highest Court of appeal in the land should not sit in divisions. Every Judge, except of course such judges as may be disqualified by personal interest or otherwise from hearing particular cases, should share the responsibility for every decision of the Court.” (The Framing of India’s Constitution Vol.III by S.Shiva Rao p.219).
This was a very good suggestion. But unfortunately that suggestion was not accepted and the principle which was dear to Justice Frankfurter was not incorporated in our Constitution. The result is that each Judge does not share the responsibility for every decision of this Court.
33. For a proper working arrangement in the Court, we have framed Rules under Article 145 of the Constitution conferring power on the Chief Justice to constitute benches for disposal of cases. Order VII Rule (1) of the Supreme Court Rules 1966 provides that every cause, appeal or matter shall be heard by a Bench consisting of not less than two judges nominated by the Chief Justice. But this rule is subject to the requirement under Article 145(3) of the Constitution. Article 145 (3) requires a minimum number of five judges for deciding any case involving substantial question of law as to interpretation of the Constitution. In any event, the Supreme Court has to sit in benches with judges distributed as the Chief Justice desires:
34. In this context, Order VII Rule 2 of the Supreme Court Rules also needs to be noted. It provides:
“Where in the course of the hearing of any cause, appeal or other proceeding, the bench considers that the matter should be dealt with by a larger bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a bench for the hearing of it.”
35. This is undoubtedly a salutary Rule, but it appears to have only a limited operation. It apparently governs the procedure of a smaller bench when it disagrees with the decision of a larger bench. The bench in the course of hearing of any matter considers that the matter should be dealt with by a larger bench, it shall refer the matter to the Chief Justice. The Chief Justice shall then constitute a larger bench for disposal of the matter. This exercise seems to be unnecessary when a larger bench considers that a decision of a smaller bench is incorrect unless a constitutional question arises. The practice over the years has been that a larger bench straightaway considers the correctness of and if necessary overrules the view of a smaller bench. This practice has been held to be a crystallised rule of law in a recent decision by a special bench of seven learned judges. In A.R. Antulay v. R.S. Nayak (AIR 1988 SC 1531), Sabyasachi Mukharji,J.,speaking for the majority said:
“The principle that the size of the bench whether it is comprised of two or three or more judges – does not matter, was enunciated in Young v. Bristol Aeroplane Ltd. (supra) and followed by Justice Chinnappa Reddy in Javed Ahmad Abdul amid Pawla v. State of Maharashtra (1985 (2) SCR 8) where it has been held that a Division Bench of two judges, has not been followed by our courts.
xxxx xxxx x xxxx xxxx xxxx
“The law laid down by this Court is some what different. There is a hierarchy within the court itself here where larger benches overrule smaller benches. See Mattulal v. Radhey Lal (1975 (1) SCR 127: AIR 1974 SC 1596); Union of India v. K.S. Subramanian (1977 (1) SCR 87 at 92: AIR 1976 SC 2433 at 2437) and State of U.P. vs. Ram Chandra Trivedi (1977 (1) SCR 462 at 473 : AIR 1976 SC 2547 at 2555). This is the practice followed by this Court and now it is a crystallised rule of law.”
36. The answer to the question posed in Javed Ahmad case thus stands concluded and it is now not open to any one to contend that a bench of two judges cannot be overruled by a bench of three judges. We must regard this as a final seal to the controversy.
37. Before grappling with the crucial issue that has been raised in these petitions, it would be convenient to dispose of what may be regarded as peripheral submissions. Mr.R.K. Jain, learned counsel who led the arguments on behalf of the petitioners referred to us in detail the consideration of justice, morality and usefulness of capital punishment. The counsel also referred to us the opinion expressed by eminent persons like Shri Arvindo (Tales of Prison Life) with regard to torment in the prison life. e also invited our attention to the dissenting opinion of Bhagwati,J., in Bachan Singh where learned Judge observed that the execution “serves no social purpose”. The learned counsel made an impassioned appeal to save the life of these condemned persons by substituting life imprisonment on the ground of inordinate delay in execution. I can really appreciate the compassionate feeling with which the counsel made his submission. The “self” in him came out with every word he uttered. e seems to belong to a faith where ‘non-violence’ to every life is a must. Not that we are different underneath the robes. As said by Justice Brennan, while dealing with his opinion in Furman v. Georgia (408 U.S.238) “I am not, that we are each not, a human being with personal views and moral sensibilities and religious scruples. But it is to say that above all, I am a Judge”. (The Oliver Wendell omes Lecture, delivered in September 5, 1986). We are flesh-and-blood mortals with normal human traits. Indeed, like all others, we too have some inborn aversions and acquired attractions. But it is not for us while presiding over courts to decide what punishment or philosophy is good for our people. While examining constitutional questions, we must never forget Marshall’s mighty phrase “that it is a constitution that we are expounding”. We are oath bound to protect the Constitution. We are duty bound to safeguard the life and liberties of persons. We must enforce the constitutional commands, no matter what the problem. In other issues of constitutional considerations, we must understand the aspirations and convictions of men and women of our time. And we should not be swayed by our own convictions. We must never allow our individuality to overshadow or supersede the philosophy of the Constitution.
38. These are various philosophical ideologies and underpinnings about the purposes of punishment. It includes among others deterrence, retribution, protecting persons, punishing guilty and acquitting the innocent. Among these objectives deterrence and retribution are prominent. Retribution is often confused with revenge, but there are distinct differences. Retribution embodies the concept that an offender should receive what he rightfully deserves. Deterrence has a two fold object. The first object relates to specific deterrence. It will deter the individual from committing the same or other offences in the future. The second object is as to general deterrence. It will convince or deter others that “crime does not pay” (See ‘Crime and Punishment’ by arry E. Allen & ors. at 735).
39. The Law Commission of India summarised these aspects as to the capital sentence (35th report para 265(18):
“The fact remains however, that whenever there is a serious crime, the society feels a sense of disapprobation. 4pIf there is any element of retribution in the law, as administered now, it is not the instinct of the man of jungle but rather a refined evolution of that instinct the feeling prevails in the public is a fact of which notice is to be taken. The law does not encourage it, or exploit it for any undesirable ends. Rather, by reserving the death penalty for murder, and thus visiting this gravest crime with 4pthe gravest punishment the law helps the element of retribution merge into the element of deterrence.”
40. Sarkaria,J., after referring to this report speaking for the
majority in Bachan Singh (1980 (2) SCC 684 at 721) recognises:
“Retribution and deterrence are not two divergent ends of capital punishment. They are convergent goals which ultimately merge into one.”
The punishments are provided in order to deter crimes. The ppunishments are imposed to make the threat credible.
Threats and 4pimposition of punishments are obviously necessary to deter crimes. 4pAs a venerated British istorian, Arthur Bryant writes “The sole justification for the death penalty is not to punish murderers but 4pto prevent murder.” Professor Earnest Van Den aag states:
“The murderer learns through his punishment that his fellow men have found him unworthy of living, that because he has murdered, he is being expelled from the community of the living. This degradation is selfinflicted. By murdering, the murderer has so dehumanised himself that he cannot remain among the living. The social recognition of his self-degradation is the punitive essence of execution.” (See arvard Law Review: 1986 Vol.99 p.1699).
41. Of course, one cannot have any empirical data to prove that capital punishment can be deterrent greater than life imprisonment. It may be that most killers as the Professor Jack Greenberg states “do not engage in anything like a cost-benefit analysis. They are impulsive and they kill impulsively.” The paradigm of this kind of murderers cannot be properly accounted for. owever, many classic experiments on the effects of corporal punishments on dogs, monkeys, pigeons and other animals have been conducted in psychology laboratories. Graeme Newman in his book “Just and Painful” (at 127) refers to such experiments. The learned author states that corporal punishment works and it has been so successful that some animals have starved themselves to death rather than eat the forbidden food. This position with the human beings is said to be not different. Indeed, it cannot be different as we could see from day to day life. As between life and death one loves life. It is the love of life with sensuous joy of companionship that moves the race and not so much the ideals. One views the death with trepidation. In fact, every living being dreads death and it cannot be an exception with those on death row. They like all others want to live and live as long as they can. Because, the life has its own attraction, no matter in what form and condition. The death has no such attraction and cannot have any, since it is the most mysterious of all in this world.
42. The criminal law always keeps pace with the development of society. It reflects as Chief Justice Warren said: “the evolving standards of decency that mark the progress of a maturing society”. (Trop. v. Dulles 356 U.S. 86, 101 (1958). We have much to learn from history of every country. The punishment which meets the unanimous approval in one generation, may rank as the most reprehensible form of cruelty in the next. Take for instance, the punishment of whipping. A search of historical records of 16th century England shows that men and women were whipped unmercifully for trivial offences as peddling, being drunk on a Sunday, and participating in a riot.
43. Many other instances of ferocious whippings of men and women, both for political and other offences, besprinkle and blacken English historical records. Rarely did any shred of excuse for human frailty seem to enter into the souls of those sitting in judgment. In the days of charles the Second, however, the Duke of York did interpose in one such case he saved Lady Sophia Lindsay from being publicly whipped through the streets of Edinburgh for the crime of assisting at the escape of the Earl of Argyle, her own father-in-law.
44. In the early eighteen hundreds the Australian penal settlements were the scene of floggings of so severe a nature as to rival, for sheer savagery, the worst that were inflicted in England during the sixteenth century, or in the southern State of America during the days of slavery. In the United States of America whipping was a favourite seventeenth-century punishment for various offences, and both male and female culprits came under the lash. Of all the civilized nations, Russia may be considered to be the one which not only used the whip unmercifully, but also as the nation which continued to use it longer by far and for a greater variety of crimes than did any other. Next to Russia, for sheer love of whipping, comes China, and little less formidable than the Russian knot is the Chinese rod of split bamboo. The sharp edges of the bamboo cut into the flesh, inflicting terrible lacerations. Little wonder that deaths, as a result of these floggings, have been frequent, and that those who escape this fate are often so terribly mutilated that they remain crippled for the rest of their lives (The istory of Capital Punishment – by G.R. Scott (1948) pages 39 to 56).
45. Take the history of punishment of death in England. In 1810 Sir Samuel Romilly who asked the Parliament to abolish the death penalty for some of crimes said “there is probably no other country in the world in which so many and so great a variety of human actions are punishable with loss of life as in England”. (A istory of English Criminal Law By L.Radzinowicz V(1) p(1).
46. The beginning of the nineteenth century was a period of indiscriminate imposition of capital punishment in England for numerous widely differing offences. There were two hundred or more such offences. There were several legislations providing punishment of death in the reign of George IV. All felonies except petty larceny and mayhem were theoretically punishable with death. From 1827 to 1841 several legislations were passed abolishing the punishment of death in a variety of cases. Burning continued till 1790 to be the punishment inflicted on women for treason, high or petty. (which latter included not only the murder by a wife of her husband, and the murder of a master or mistress by a servant but also several offences against the coin). Burning in such cases was abolished by 30 Geo.3, c.48. In practice, women were strangled before they were burnt; this, however, depended on the executioner. In one notorious case a woman was actually burnt alive for murdering her husband, the executioner being afraid to strangle her because he was caught by the fire. In the reign of George II, an act was passed which was intended to make the punishment for murder more severe than the punishment for other capital crimes. This was 25 Geo. 2, c.37, which provided that a person convicted of murder should be executed on the next day but one after his sentence (unless he was tried on a Friday, in which case he was to be hanged on the Monday). e was to be fed on bread and water in the interval and his body, after death, was either to be dissected or to be hung in chains. The judge, however, had power to respite or to remit these special severities. Under this act murderers were usually anatomized, but sometimes gibbeted. By the 2 & 3 Will. 4, c.7 s.16 (for the regulation of schools of anatomy), it was enacted that the bodies of murderers should no longer be anatomized, but that the sentence should direct that they should either be hung in chains or be buried in the prison. Several persons were gibbeted under this act. These provisions distinguish English law in a marked manner from the continental laws down to the end of the last century. In most parts of the continent breaking on the wheel, burning in some cases quartering alive and tearing with red-hot pincers, were in use, as well as simpler forms of death. (istory of the Criminal Law of England by Stephen Ch.XIII p.477-478).
47. Through out the reign of enry the Eighth, there were no fewer than two thousand executions a year. As the stress on the value of property increased, the net was widened. Not alone murderers and traitors; but robbers, coiners, heretics and witches were sent to their death. The shooting of a rabbit; the forgery of a birth certificate; the theft of a pocket-handkerchief; the adoption of a disguise; the damaging of a public property were also included in the list of death sentence. In 1814 a man was hanged at Chelmsford for cutting down a cherry tree.
48. The public hangings in England continued until well into the nineteenth century. There were public executions with a large number of people watching. On January 22, 1829, William Burke was hanged at Edinburgh, and the crowd was great beyond all former precedent. The last person to be hanged publicly in England was Michael Barrett, who was executed at Newgate on May 26, 1868. As time went past, the list of death sentence crimes was rapidly reduced and in 1950, it was confined for four crimes only, to wit: (1) murder, (2) treason, (3) piracy with violence, and (4) setting fire to arsenals and dockyards. Later this was also abolished. (See G.R. Scott, The istory of Capital Punishment, 38-66 (1950).
49. What happened in the United States? It will be noticed that in the United States, the accused has a constitutional right to be tried by a Jury, as provided under 6th Amendment. The accused has a right not to be subjected to “cruel and unusual punishment” as mandated under 8th Amendment. In Furman, some Judges took the view that death sentence was unacceptable to the evolving standards of decency of the American people. But the American people rejected that view. Since then 35 States have re-enacted laws providing for the death sentence for murder by suitably altering the provisions to comply with Furman. 50. What do we have here? The representatives of our people are cognizant of the contemporary social needs. The legislative amendments brought about from time to time are indicative of their awareness. Sub-sec.(5) of sec.367 of the Code of Criminal Procedure, 1898 as it stood prior to its amendment by Act 26 of 1955 provided:
“If the accused is convicted of an offence punishable with death, and the court sentences to any punishment other than death, the court shall in its judgment state the reasons why sentence of death was not passed.”
51. This provision laid down that if an accused was convicted of an offence punishable with death, the imposition of death sentence was the rule and the awarding of a lesser sentence was an exception. The court had to state the reasons for not passing the sentence of death. There was a change by the amending Act 26 of 1955 which came into force with effect from January 1, 1956. The above sub-section was deleted and it was left to the discretion of the court in each case to pass a sentence of death or life imprisonment. In 1973 there was again a reshaping of the provision regarding the death penalty. In the Code of Criminal Procedure, 1973, sec.354(3) was inserted in these terms:
“When the conviction is for an offence punishable with death, or in the alternative with the imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons for such sentence.”
52. It is now obligatory for the court to state reasons for the sentence awarded for the offence of murder. The court can not award death sentence without giving special reasons. As earlier noticed that death sentence could be awarded only in exceptional cases and not in the usual run of murders. We have got just six offences carrying death penalty and that too as an alternate sentence (Sections 120B, 121, 132, 302, 307 and 396 IPC).
53. This is the need and notion of the present day society. Tomorrow’s society and the atmosphere in which they live may be quite different. They may not have rapist murderers like Ranga and Billa. They may not have any merciless killing and brideburning. They may have more respect for each other life. They may be free from criminalisation of politics and elimination of political leaders by muscle power. There then the penal law cannot remain isolated and untouched. It will be profoundly influenced by philosophy prevailing. Time may reach for the representatives of people to consider that death penalty even as an alternate sentence for murder is uncalled for and unnecessary. There is nothing in our Constitution to preclude them from deleting that alternate sentence. The crusade against capital punishment may, therefore, go on elsewhere and not in this Court.
54. Let me now turn to the pivotal question which I have referred at the beginning of the judgment. The question is whether the sentence of life imprisonment should be substituted on account of time factor alone, however, right and valid the death sentence was at the time when it was awarded. The arguments for the petitioners primarily rested on the common area of agreement in Vatheeswaran and Sher Singh cases on the implication of Article 21. The accepted principle according to counsel, is that prolonged delay in execution would be “unjust, unfair and unreasonable”. It would be inhuman and dehumanising to keep the condemned person for a long period. It offends the constitutional safeguards under Article 21.
55. Article 21 of the Constitution mandates the state that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The scope and content of this Article has been the subject matter of intensive examination in the recent decisions of this Court. I do not want to add to the length of this judgment by recapitulating all those decisions in detail. I may only highlight some of the observations which are relevant to the present case. In Maneka Gandhi v. Union of India (1978 (1) SCC 248) this Court gave a new dimension to Article 21. The seven judge bench held that a statute which merely prescribes some kind of procedure for depriving a person of his life or personal liberty cannot meet the requirements of Article 21. Bhagwati,J., as he then was, while explaining the nature and requirement of procedure under Article 21 observed (at 283):
“We must reiterate here what was pointed out by the majority in E.P. Rayappa vs. State of Tamil Nadu (1974) S.SCR 348: 1974 (4) SCC (L&S)165),namely, that “from a positivistic point of view, equally is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14”. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omni-presence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not “arbitrary, fanciful or oppressive”, otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.”
56. If one prefers to go yet further back, the procedural fairness in the defence of liberties was insisted upon even in 1952. The State of West Bengal v. Anwar Ali (1952 SCR 284) Bose,J., remarked (at 367):
“The question with which I charge myself, is, can fair- minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.”
57. In Bachan Singh case, Sarkaria,J., affirming this view said (at 730):
“No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.”
58. In Mithu v. State of Punjab (1983 (2) SCC 277) Chandrachud,C.J., said (at 284):
“…. that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is for the courts to determine, so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable.”
59. In Sher Singh v. State of Punjab (1983 (2) SCC 582) Chandrachud, C.J., again explained (at 593):
“The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure no matter the stage, must be fair, just and reasonable.”
60. Article 21 thus received a creative connotation. It demands that any procedure which takes away the life and liberty of persons must be reasonable, just and fair. This procedural fairness is required to be observed at every stage and till the last breath of the life.
61. In Vatheeswaran the court thought that the delay of two years would make it unreasonable under Article 21 to execute death sentence. The court did not attach importance to the cause of delay. The cause of delay was immaterial. The accused himself may be responsible for the delay. The court said that the appropriate relief would be to vacate the death sentence and substitute life imprisonment instead.
62. The learned counsel for the petitioners argued that if two years period of delay set out in Vatheeswaran does not present favourably, we may fix any other period but we should not disturb the basis of the decision. e invited our attention to a number of authorities where courts have awarded life imprisonment on the ground of delay in disposal of cases.
63. In Vivian Rodrick v. The State of West Bengal (1971 (1) SCR 468) six years delay was considered sufficient for imposing a lesser sentence of imprisonment for life. In State of U.P. v. Paras Nath Singh & Ors. (1973 (3) SCC 647), the Court, while reversing the order of acquittal awarded life imprisonment on the ground that the accused was under sentence of death till he was acquitted by the igh Court. Similar was the view taken in State of Bihar v. Pashupati Singh (1974 (3) SCC 376); State of U.P. v. Suresh (1981 (3) SCC 635 at 643) and State of U.P. v. Sahai (1982 (1) SCC 352).
64.In State of U.P. v. Suresh, the accused was given life imprisonment in view of the fact that seven years had elapsed after the date of murder. In Ram Adhar v. State of U.P. (1979 (3) SCC 774 at 777), the delay of six years from the date of occurrence was held sufficient to commute the sentence of death to life imprisonment. The court also observed that the accused was not responsible in any manner for the lapse of time that has occurred.
65. In Nethi Sreeramulu v. State of A.P. (1974 (3) SCC 314) the Court while disposing of the appeal in 1973 commuted the sentence of death given in 1971 to life imprisonment. In State of U.P. v. Lalla Singh & Ors. (1978 (1) SCC 142) six years delay from the date of judgment of the trial court was a consideration for not giving the death sentence. In Sadhu Singh v. State of U.P. (1978 (4) SCC 428) about three years and seven months during which the accused was under spectre of death sentence, was one of the relevant factors to reduce the sentence to life imprisonment.
66. There are equally other decisions where in spite of the delay in disposal of the case, the Court has awarded the death sentence. In Nachhittar Singh vs. State of Punjab (1975 (3) SCC 266), the court refused to consider the question of delay as a mitigating circumstance. In Maghar Singh v. State of Punjab (1975 (4) SCC 234), the court said that delay does not appear to be good ground to commute to life imprisonment in view of the pre-planned, cold-blooded and dastardly murder committed by the accused. In Lajar Mashi v. State of U.P. (1976 (1) SCC 806), the court while confirming the death sentence observed (at 809):
“The value of such delay as a mitigating factor depends upon the features of a particular case. It cannot be divorced from the diabolical circumstances of the crime itself, which, in the instant case fully justify the award of capital sentence for the murder of the deceased. We, therefore, uphold the award of the capital sentence to the appellant and dismiss his appeal.”
67. All these decisions are of little use to determine the constitutionality of execution of the death sentence on the relevance of delay. These decisions relate to the sentencing discretion of courts with which we are not concerned. We are concerned with the right of the accused to demand life imprisonment after the final verdict of death sentence with every justification to impose it.
68. The demand for life imprisonment herein is solely based on the ground of prolonged delay in the execution. The delay which is sought to be relied upon by the accused consists of two parts. The first part covers the time taken in the judicial proceedings. It is the time that the parties have spent for trial, appeal, further appeal and review. The second part takes into fold the time utilized by the executive in the exercise of its prerogative clemency.
69. I start with the first part of the delay. In Vatheeswaran
this part of the delay was expressly taken into consideration. It was observed that the period of two years as prolonged detention would include the time necessary for appeal from the sentence of death and consideration of reprieve. In Sher Singh, this period has not been accepted as good measure. The court said that the fixation of time limit of two years did not accord with the common experience of time normally consumed by the litigative process and the proceedings before the Government.
70. Mr. Parasaran, learned Attorney General has altogether a different approach and in my opinion very rightly. e argued that the time spent by the courts in judicial proceedings was intended to ensure a fair trial to the accused and cannot be relied upon by the same accused to impeach the execution of the death sentence. The relevant provisions in the Indian Penal Code, the Criminal Procedure Code, the Evidence Act and the Rules made by the igh Courts and the Supreme Court governing the trial, appeal, execution of sentence, etc., were all highlighted. According to learned Attorney, these provisions are meant to examine the guilt or innocence of the accused and to have an appropriate sentence commensurate with the gravity of the crime. They constitute reasonable procedure, established by law.
71. I entirely agree. The time taken in the judicial proceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry-up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sentencing or the appellate court while disposing of the appeal may consider the delay and the cause thereof along with other circumstances. The court before sentencing is bound to hear the parties and take into account every circumstance for and against the accused. If the court awards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence save by way of review. There cannot be a second trial on the validity of sentence based on Article 21. The execution which is impugned is execution of a judgment and not apart from judgment. If the judgment with the sentence awarded is valid and binding, it falls to be executed in accordance with law since it is a part of the procedure established by law. Therefore, if the delay in disposal of the case is not a mitigating circumstance for lesser sentence, it would be, in my opinion, wholly inappropriate to fall back upon the same delay to impeach the execution.
72. If the delay in passing the sentence cannot render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional. Much less any fixed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fix any period of limitation for execution on the ground that it would be a denial of fairness in procedure under Article 21. With respect, I am unable to agree with the view taken in Vatheeswaran case on this aspect.
73. Under Article 72 of the Constitution, the President shall have the power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted in an offence”. Under Article 161 of the Constitution, similar is the power of the Governor to give relief to any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. The Court, therefore, cannot prescribe a time limit for disposal of even for mercy petitions.
74. It is, however, necessary to point out that Article 21 is relevant at all stages. This Court has emphasized that “the speedy trial in criminal cases though not a specific fundamental right, is implicit in the broad sweep and content of Article 21”. (See: ussainara Khatoon v. The State of Bihar {1979 (3) SCR 169 and 1980 (1) SCC 81}). Speedy trial is a part of one’s fundamental right to life and liberty. (See Kadra Pahadiya v. State of Bihar {1981 (3) SCC 671 and 1983 (2) SCC 104}). This principle, in my opinion, is no less important for disposal of mercy petition. It has been universally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture. e may be provided with amenities of ordinary inmates in the prison as stated in Sunil Batra v. Delhi Administration (1978 (4) SCC 494), but nobody could succeed in giving him peace of mind.
Chita Chinta Dwayoormadhya,
Chinta tatra gariyasi,
Chita Dahati Nirjivam,
Chinta dahati Sajeevakam.
75. As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one. This mental torment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned prisoner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed.
76. What should be done by the Court is the next point for consideration. It is necessary to emphasise that the jurisdiction of the Court at this stage is extremely limited. If the Court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay. The matter, therefore, must be expeditiously and on top priority basis, disposed of. The Court while examining the matter, for the reasons already stated, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The Court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under Article 226 or under Article 32 of the Constitution after the final judgment affirming the conviction and sentence. The Court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay, may be a significant factor, but that by itsel cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself. The Court has still to consider as observed in Sher Singh case (at 596):- “The nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed.”
77. The last contention urged for the petitioners that the accused should not be executed if he has since improved is unavailable since it seeks to substitute a new procedure which the code does not provide for. 78. We have already considered all these cases in the light of these principles and disposed them of by our earlier unanimous order.