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SUPREME COURT OF INDIA
P. SATHASIVAM, CJI., RANJAN GOGOI, SHIVA KIRTI SINGH, JJ.
Shatrughan Chauhan & Anr. – Petitioners
Versus
Union of India & Ors. – Respondents
WRIT PETITION (CRIMINAL) NO. 34, 55, 56, 136, 139, 141, 132, 187, 188, 190, 191, 192, 193 OF 2013
Decided On : 21-01-2014
(1980) 2 SCC 625; (1988) 2 SCC 602 - Relied upon
(b) Constitution of India - Article 32 - Violation of fundamental rights - Arising out of executive action/ inaction or legislation action - Article 32 comes to rescue. (Para 9)
(1979) 3 SCC 489; (1983) 2 SCC 68; (1983) 2 SCC 344; (1988) 4 SCC 574 - Relied upon
(c) Constitution of India - Article 72/161 - President can, in exercise of the power under Article 72 of the Constitution, scrutinize the evidence on record and come to a different conclusion than the one arrived at by the Court - Legal effect of a pardon is wholly different from a judicial supersession of the original sentence - President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by Court. (Paras 11 and 12)
(1989) 1 SCC 204; (2006) 8 SCC 161 - Relied upon
(d) Constitution of India - Article 72/161 - Entail remedy to all the convicts and not limited to only death sentence cases - It contains power of reprieve, remission, commutation and pardon for all offences, though death sentence cases invoke the strongest sentiment since it is the only sentence that cannot be undone once it is executed. (Para 14)
(e) Constitution of India - Article 72 - Power vested in President is Constitutional duty - It is neither a matter of grace nor a matter of privilege. (Para 17)
274 US 480; (1989) 1 SCC 204; (2006) 8 SCC 161; (1982) 1 SCC 417 - Relied upon
(f) Constitution of India - Article 72 - Judicial Review of the executive orders under Article 72/161- Constitutional authority is presumed to act with application of mind - Scope of judicial review limited - Grounds for such review restated. (Paras 18 to 20)
(2006) 8 SCC 161; (2004) 7 SCC 634; (1989) 1 SCC 204; Ashok Kumar; AIR 1998 SC 2026; AIR 2000 SC 1702; (2011) 4 SCC 353 - Relied upon
(g) Constitution of India - Article 72 r/w 21 - Mercy petitions rejected, allegedly without considering supervening events - Article 21 inheres a right in every prisoner till his last breath - Requires consideration of supervening events - Court duty bound to protect that right even if the noose is being tied on the condemned prisoner's neck - Delay is a permitted ground for judicial review - Doctrine of stare decisis. (Paras 22 and 23)
(1983) 2 SCC 344; (1988) 4 SCC 574; (1983) 2 SCC 68; (2009) 9 SCC 495 - Relied upon
(h) Constitution of India - Article 21 - Rights of the accused and the victim and societal considerations - Delay in disposing mercy petition - Undue long delay in execution of death sentence - Entitles the condemned person to approach Supreme Court u/Art 32 - Court should only examine the nature of delay and circumstances ensuing after final confirmation of sentence - Court will have no jurisdiction to re-open the judgment finally maintaining the death sentence - No fixed period of delay could be held to make the sentence of death inexecutable. (Para 32 to 34 and 38)
(2010) 3 SCC 571; (1974) 4 SCC 443; (1988) 4 SCC 574; (1989) 1 SCC 678; [1994] 2 AC 1 - Relied upon
(1983) 2 SCC 68; (1983) 2 SCC 344 - Referred
(i) Constitution of India - Article 32 r/w 21 - Rejection of mercy petition after delay of many years - Creates adverse physical conditions and psychological stress on convict - Amounts to ("cruel and degrading treatment and/or punishment" - Cannot be excused only on the basis of gravity of the crime. (Para 39)
(1997) 6 SCC 241; [1994] 2 AC 1; 1993 (4) S.A. 239; App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989); Constitutional Appeal No. 3 of 2006, Uganda; A.D. 2000 Action No. 296, Belize - Referred
(j) Constitution of India - Article 21 - Undue, unexplained and inordinate delay in execution due to pendency of mercy petition - Court empowered u/Art 32 to commute death sentence in life imprisonment. (Paras 42 and 43)
(1989) 1 SCC 678; (1983) 2 SCC 68; (1982) Crl. Law Review 679; (1978) 1 SCC 248 - Relied upon
(k) Constitution of India - Article 21 - Provision substantive rather than procedural - Violation - Not a question of judicial review but of protection of fundamental rights - Entitles accused to substantial relief and not merely procedural protection - Remand of the matter for consideration is not needed (Paras 43 and 44)
(l) Constitution of India - Article 21 - Sentencing - Delay in execution due to pendency of mercy petition - Concern for the victim and other considerations - Already taken care of while confirming death sentence - Now the accused turning into victim of prolonged torture due to inordinate delay - The two situations need to be distinguished - Court cannot re-open the judgment confirming death sentence - Delay if unreasonable, unexplained and inordinate is a ground for commuting the death sentence. (Paras 52 to 54)
(1973) 2 SCC 86 - Relied upon
(m) Indian Penal Code, 1860 - Section 302 - Offence under, or an offence TADA - Gravity of crime - Warrant of death sentence - Already duly considered while sentencing - Inordinate delay in execution - Amounts to additional period of imprisonment - Not prescribed by law - Legislature may consider suitable enactment. (Paras 57 and 58)
(1980) 2 SCC 684 - Relied upon
(2013) 6 SCC 195 - Referred
(n) Constitution of India - Article 21 - Inordinate delay in execution entitling a convict to commutation of death sentence - Applies to all cases including those under TADA - No good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence. (Para 64 and 70)
(2013) 6 SCC 253; (1983) 2 SCC 277 - Relied upon
(2013) 6 SCC 195 - Held per incuriam
(o) Administration of Justice - Judicial Review - Law excluding judicial review - Is arbitrary and oppressive - Section 303, IPC struck down on this ground. (Para 69)
(1983) 2 SCC 277; (1978) 1 SCC 248; (1980) 2 SCC 684; (1978) 4 SCC 494 - Relied upon
(p) Constitution of India - Article 21 - Delay in execution of death sentence - Causing insanity/ mental illness - Whether a ground for commutation - Human rights - Hanging a person suffering from any form of mental disorder - Is a supervening circumstance warranting commutation of death sentence to life imprisonment. (Para 73 to 80)
(q) Prisons Act - Section 30(2) - Expression 'sentenced to death' - Sentence means final sentence, after disposal of mercy petition - Even after confirmation by Supreme Court a prisoner does not gets covered under 'sentenced to death' so long his mercy petition is pending - To be under 'sentence of death' means 'to be under a finally executable death sentence'. (Para 82)
(1978) 4 SCC 494 - Relied upon
(r) Prisons Act - Section 30(2) - Solitary confinement - On a prisoner not 'sentenced to death' - Amounts to inflicting "additional and separate" punishment not authorized by law - In such cases intent of the verdict in (1978) 4 SCC 494 should be followed. (Para 83)
(1978) 4 SCC 494; (1989) 1 SCC 678 - Relied upon
(s) Constitution of India - Article 21 and 32 - Delay in execution of death sentence due to pendency of mercy petition - Effect and relief - Supervening circumstances - Per incuriam judgments - Judgments referred not shown to have been wrongly decided - Later decisions only clarifying and applying to the fact situations - No need to give importance to contention of per incuriam. (Para 89)
(t) Mercy petition Rules - Instructions relating to duties of Superintendents of Jail - Instructions for preparation of note by Home Ministry - Prison manuals - Language uses the words 'at once' - Ordains that at every stage the matter has to be expedited - Death convicts have to be treated fairly in the light of Article 21. (Para 93 and 96)
Writ Petition (Crl.) Nos. 55 and 132 of 2013
(u) Constitution of India - Article 21 and 32 - Delay in execution of death sentence due to pendency of mercy petition - Effect and relief - Supervening circumstances - Procedural lapses - Delay of 12 years in rejecting mercy petition - No reasons, much less plausible one, stated even in the note prepared by Ministry of Home Affairs - Such delay in considering the mercy petitions - A relevant ground for commutation of death sentence into life imprisonment. (Para 116)
Writ Petition (Crl.) No. 34 of 2013 and Writ Petition (Crl.)No. 187 of 2013
(v) Constitution of India - Article 21 and 32 - Delay in execution of death sentence due to pendency of mercy petition - Effect and relief - Supervening circumstances - Procedural lapses - Unexplained delay of 9½ years - Petitioners entitled to commutation of death sentence into life imprisonment - Their cases being under TADA notwithstanding. (Para 135 and 150)
(Crl Appeal No. 1728 of 2007) - Relied upon
(2013) 6 SCC 195 - Per incuriam
Writ Petition (Crl.)No. 193 of 2013
(w) Constitution of India - Article 21 and 32 - Delay in execution of death sentence due to pendency of mercy petition - Effect and relief - Supervening circumstances - Procedural lapses - Undue and unexplained delay of 7 years and 8 months - Case made out for commutation of death sentence into life imprisonment. (Para 175)
Writ Petition (Crl.) No. 188 of 2013
(x) Constitution of India - Article 21 and 32 - Delay in execution of death sentence due to pendency of mercy petition - Effect and relief - Supervening circumstances - Procedural lapses - Undue and unexplained delay in disposal of mercy petition - Convict attempting suicide - Case made out for commutation to life imprisonment. (Para 190)
Writ Petition (Crl.)No. 192 of 2013
(y) Constitution of India - Article 21 and 32 - Supervening circumstances - Procedural lapses - Prisoner suffering from mental illness - UP Jail manual, International conventions and decisions of UNO - Bar against execution of person with mental illness - Mercy petition rejected without considering prisoner's mental illness - Though the delay is only of 2½ years, mental condition of petitioner entitles him to commutation of the death sentence. (Para 208)
Writ Petition (Crl.)No. 190 of 2013
(z) Constitution of India - Article 21 and 32 - Delay in execution of death sentence due to pendency of mercy petition - Effect and relief - Supervening circumstances - Procedural lapses - SLP against affirmation of conviction and sentence by High Court dismissed in limine - In addition, there is undue and unexplained delay in disposal of mercy petition - Petitioner entitled to commutation of death sentence to life imprisonment. (Para 230)
(2012) 9 SCC 1 - Referred
Writ Petition (Crl.) Nos. 191 and 136 of 2013
(aa) Constitution of India - Article 21 and 32 - Delay in execution of death sentence due to pendency of mercy petition - Effect and relief - Supervening circumstances - Procedural lapses - No excessive delay in rejecting mercy petition - SLP dismissed in limine - Prisoner suffering from mental illness - Authorities failing to consider these aspects - Petitioner entitled to commutation of death sentence into life imprisonment. (Para 244)
Writ Petition (Crl.) Nos. 139 and 141 of 2013
(ab) Prison Manual - Prison authorities informing petitioners on 13.08.2013 of rejection of their mercy petition - Local police informing their relatives that execution will be done on 22.08.2013 - Rules requiring execution to be scheduled after clear 14 days of informing the prisoners of rejection of mercy petition - Procedure not followed. (Para 255)
(ac) Constitution of India - Article 21 and 32 - Delay in execution of death sentence due to pendency of mercy petition - Effect and relief - Supervening circumstances - Procedural lapses - Undue and unexplained delay in disposal of mercy petition - Case made out for commutation to life imprisonment. (Para 258)
(ad) Constitution of India - Article 21 - Guidelines for safeguarding the interest of the death row convicts including compulsory post mortem proposed. (Para 259 and 260)
(ae) Constitution of India - Articles 72/161 and 21 Mercy jurisprudence - Power under Article 72/161 is constitutional obligation and not mere prerogative - Mercy petitions to be disposed of within treasonable time - Article 72/161 confer Constitutional right on the convicts - Constitutional duty of the authorities to be discharged with due care and diligence - On failure judiciary interferes not with exercise of powers u/Art 72/161, but to uphold Constitutional protection to convicts. (Para 263 and 264)
Facts of the case:
In all the writ petitions, the main prayer consistently relates to the issuance of a writ of declaration declaring that execution of sentence of death pursuant to the rejection of the mercy petitions by the President of India is unconstitutional and to set aside the death sentence imposed upon them by commuting the same to imprisonment for life. Further, it is also prayed for declaring the order passed by the Governor/President of India rejecting their respective mercy petitions as illegal and unenforceable.
These petitions have been filed because the death sentences were not executed on confirmation by the Supreme Court and the petitions under Article 72/161 were pending indefinitely.
Finding of the Court:
The petitions are maintainable. Court declined to interfere on ground of solitary confinement. Undue, unreasonable and unexplained delay in disposal of mercy petition as also mental illness are relevant considerations for commuting death sentence.
Result : All petitions allowed.
Judgment :-
P. Sathasivam, CJI.
1) Our Constitution is highly valued for its articulation. One such astute drafting is Article 21 of the Constitution which postulates that every human being has inherent right to life and mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Over the span of years, this Court has expanded the horizon of ‘right to life’ guaranteed under the Constitution to balance with the progress of human life. This case provides yet another momentous occasion, where this Court is called upon to decide whether it will be in violation of Article 21, amongst other provisions, to execute the levied death sentence on the accused notwithstanding the existence of supervening circumstances. Let us examine the supervening circumstances of each individual case to arrive at a coherent decision.
2) All the above writ petitions, under Article 32 of the Constitution of India, have been filed either by the convicts, who were awarded death sentence or by their family members or by public-spirited bodies like People’s Union for Democratic Rights (PUDR) based on the rejection of mercy petitions by the Governor and the President of India.
3) In all the writ petitions, the main prayer consistently relates to the issuance of a writ of declaration declaring that execution of sentence of death pursuant to the rejection of the mercy petitions by the President of India is unconstitutional and to set aside the death sentence imposed upon them by commuting the same to imprisonment for life. Further, it is also prayed for declaring the order passed by the Governor/President of India rejecting their respective mercy petitions as illegal and unenforceable. In view of the similarity of the reliefs sought for in all the writ petitions, we are not reproducing every prayer hereunder, however, while dealing with individual claims, we shall discuss factual details, the reliefs sought for and the grounds urged in support of their claim at the appropriate place. Besides, in the writ petition filed by PUDR, PUDR prayed for various directions in respect of procedure to be followed while considering the mercy petitions, and in general for protection of rights of the death row convicts. We shall discuss discretely the aforesaid prayers in the ensuing paragraphs.
4) Heard Mr. Ram Jethmalani, Mr. Anand Grover, Mr. R. Basant, Mr. Colin Gonsalves, learned senior counsel and Dr. Yug Mohit Chaudhary, learned counsel for the petitioners and Mr. Mohan Parasaran, learned Solicitor General, Mr. L.N. Rao, Mr. Siddharth Luthra, learned Additional Solicitor Generals, Mr. V.C. Mishra, learned Advocate General, Mr. V.N. Raghupathy, Ms. Anitha Shenoy, Mr. Rajiv Nanda, Mr. C.D. Singh, learned counsel and Mr. Manjit Singh, Additional Advocate General for the respondents. We also heard Mr. T.R. Andhyarujina, learned senior counsel as amicus curiae.
5) Before considering the merits of the claim of individual case, it is essential to deliberate on certain vital points of law that will be incidental and decisive for determining the case at hand.
Maintainability of the Petitions
6) Before we advert to the issue of maintainability of the petitions, it is pertinent to grasp the significance of Article 32 as foreseen by Dr. Ambedkar, the principal architect of the Indian Constitution. His words were appositely reiterated in Minerva Mills Ltd. and Ors. vs. Union of India and Ors. (1980) 2 SCC 625 as follows:-
“87. ….If I was asked to name any particular Article in this Constitution as the most important – an Article without which this Constitution would be a nullity – I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it.” (emphasis supplied)
The fundamental right to move this Court can, therefore, be appropriately described as the corner-stone
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