Holding

The Supreme Court held that prolonged delay in executing a death sentence infringes Article 21, and therefore quashed the death sentence, substituting life imprisonment.

Summary

Javed Ahmed Abdul Hamid Pawala was convicted of multiple murders and sentenced to death on 6 February 1982, with the sentence confirmed by the High Court and subsequent appeals dismissed. After a clemency petition was rejected, he filed a writ petition under Article 32 of the Constitution, arguing that his young age, reformation in prison, and a delay of nearly three years in execution of the death sentence warranted commutation to life imprisonment. The Supreme Court examined whether a delay exceeding two years in carrying out a death sentence violates the right to life and personal liberty under Article 21, referencing earlier decisions that such delay constitutes inhuman and degrading punishment. The Court also considered the procedural question of whether a three‑judge division bench can overrule a two‑judge division bench, concluding that it cannot do so without a full bench. Concluding that the overall circumstances entitled the petitioner to invoke Article 21, the Court quashed the death sentence and substituted life imprisonment. The petition was allowed.

Issues considered

Whether a delay of more than two years in the execution of a death sentence violates Article 21 of the Constitution and warrants commutation.
Whether a division bench of three judges can overrule a prior decision of a division bench of two judges.
Whether the petitioner is entitled to relief under Article 32 of the Constitution.

Legislation cited

Constitution of Indias. Article 136, s. Article 21, s. Article 32

Subjects

death penaltyArticle 21delay in executioncommutationcapital punishmentconstitutional lawwrit petitionSupreme Courtprocedural fairness

Judgment

g

A

JAVED AHMED ABDUL HAMID PA WALA

v.
B
STATE OF MAHARASHTRA
November 9, 1984
(0. CHINNAPPA REDDY AND E. S. VENKATARAMIAI!, JJ.]

c Constitution of lndia-Article 2I-Scope of-Protection of Art. 21 can be
invoked by a person awaiting execution of sentence of death for corrrmutfng death
sentence into imprison1nelit for life if there is delay exceeding twa years in the ex·
ecution of sentence of death.

Practice&: Procedure-A Division Bench of three Judges cannot purport to
overrule deciJion of a Division Bench of two Judges.
D
The petitioner was convicted and sentenced to death by the Sessions
Juage on 6. 2. 1982 . The High Court confirme<j the sentence of death on
29/30. 4. 1982. An appeal preferred by the petitioner to this Court under Art.
136 of the Constitution was dismissed on 2:0. 4. 1983. The petition for review
was dismissed on 12, 8. 1983. A petition for clemency was also rejected by the
President of India. The petitioner filed the present writ petition under Art. 32
E of the Constitution praying that in view of his tender age, his reformation in
jail and the Jon2 lapse of time since the passing of the sentence of death on him
the execution of the sentence of death may be stopped and the sentence may be
commuted to one of imprisonment for life. On being asJ..ed by this Court, the
Superintend.::nt of the jail where the petitioner had been kept reported that so
far nothing adverse to the petitioner had came to the notice of the authority.
F AUowina: the petition,

HELD: In T. V. Vatheeswatan v. State of Tamil Nadu, a Division
Bench of this Court consisting of one of us and R.B. Misra, J. held that making
all reasonable allowance for the time necessary for appeal and consideration of
reprieve, delay exceeding two years in the execution of a sentence of death
G should be considered sufficient to entitle. the person under sentence of death to
invoke Art. 21 of the Constitution and demand the quashing of the sentence of
death. ShortJy thereafter in Sher Singh v. State of Punjab, another Division
Bench of three learned Judges of this Court presided over by Chandracbud,
C.J while ~xpressing almost complete agreement with most of what had been
said in Vathee1warants case dissented from the opinion expressed therein that a
delay of two years and more was sufficient to entitle a person under sentence of
death to invoke Art 21. of the Constitution. The reason was, they said ''The
u fixation of time limit of two years does not seem to us to accord with the
.I.A.A. HAMiD v. MAHARASHTRA (Chinnappa Reddy, i.) ~
'
common experience of the time normally consumed by the litigative process and
the proceedings before the executive". They also said that besides.delay there
were also other factors to be taken into account while considering the question
whether the sentence of death should be vacated. Referred Trials and Confir-
mations Cases are dealt with speedily by High Courts and are never kept pen-
ding longer than two or three months. It is only when they reach this Court
that the delay occurs. But surely, our inability to devise a procedure to deal B
expeditiously with such matters of life and death can be no justification for
silencing what the learned Chief Jllstice has himself so eloquently described as
'the voice of justice and fairplay' which demands -that 'so long as life lasts, so
long shall it be the duty and endeavour of this ~Court to give to the provisions
of our Constitution a meaning which will prevent human suffering and
degradation. [17A-F]

T. V. Vatheeswaran v. State of Tamil Nadu, [1983) 2 S. C.C. 68, Furman
c
v. State ofCeorgia, 408 US 238, Noel Riley v. Attorney-General, 1982 Cr!. Law
Review 679 and Sher Singh v. State ofPunjoh, AIR 1983 SC 465, referred to.

Whether a Division Bench of three Judges can purport to overrule the
judgment of a Division Bench of two Judges merely because three is larger than
two. The Court sits in Divisions of two and three Judges for the sake of D
convenience and it may be in-appropriate for a Divii,ion 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 b~ otherwise where a Full Bench
or a Constitution Bench does so. [l?G-H; ISA]

Young v. Bristol Aeroplane Co. Ltd., 1944 (2) All ER. 293, referred to.
E
In the instant case, an over all view of all the circumstances appears to us
to entitle the petitionrr to invoke the protection of Art. 21 of the Constitution.
We accordingly quash the sentence of death and substitute in its place the sen~
tence of imprisonment for life. [18B]

ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 972
of 1984. F
(Under article 32 of the Constitution of India)
Mrs. K. Hingorani and Mrs Rekha Pandey for the Peti-
tioner.

M. N. Shroff for the Respondent.
G
The Judgment of the Court was delivered by

. CH.INNAPPA REDDY, J. "To be or not to be", is the ques-
tion which Javed Ahmed Abdul Hamid Pawala has posed us. In
connectio~ with certain cruel and multiple murders the petitioner
was convicted and sentenced to death by the Learned Sessions
H
10 stlP!UlME COURT REPORTS (1985] i S.C.I!..

A Judge of Thane, on 6. 2. 1982. The High Court of Maharashtra
confirmed ~he sentence of death on 29/30-4-1982. An appeal
preferred by the petitioner to this Court under Art. 136 of the
Constitution was dismissed by us on 20. 4. 1983. The petition
for review was dismissed on 12. 8. 1983. A petition for clemency
was also rejected by the President of India. The Petitioner has
B filed the present writ petition under Art. 32 of the Constitution
praying that in view of his tender age, his reformation in jail and
the long lapse of time since the passing of the sentence of death on
him, the execution of the sentence of death may be stopped and
the sentence may be commuted to one of imprisonment for life.
In his petition he has frankly confessed to the dastardly crimes
c committed by him. He has stated that he now realises the
enormity of what he has done and wants to atone and make good
the injury inflicted upon society by him by striving to serve hu-
manity if given a chance to do so. Moved by the apparent ring
of sincerity in the sentiments expressed by the petitioner in his
petition, one of us (E. S. Venkataramiah, J.) admitted the peti-
D
tion and later it has been directed by the Court that the petition
should be heard by a Bench consisting of the two of us. On
14. 9. 19R4 we called for a report from the Superintendent,
Yeravada Central Prison, Pune to report about the conduct and
behaviour of the prisoner during the period of his incarceration.
E The report of the Superintendent Central Jail is to the effect that
so far nothing adverse to the petitioner has came to the notice of
the authority. The question therefore is what is to be done in
the circumstances ? The petitioner is an young man aged about
22 years. He appears to be genuinely repentant and he now
desires to atone for the grivious wrong that has been done by him.
The repentance and the desire appear to be sincere as far as we
are able to judge. The Jail authority has no adverse comment to
make against his conduct. The sentence of death has now been
hanging over his head for two years and nine months.

In T.V. Vathceswaran v. State of Tamil Nadu(1), a Division
G
Bench of this Cou t consisting of one of us and R.B. Misra, J.
considered at length the question whether delay in the execution
of the sentence of death was sufficient to entitle the person ander
the sentence of death to invoke Art. 21 of the Constitution. In

H (I) [1983] 2 S.C.C. ,8,
1.A.A. HAMID v. MAHARASHTRA (Chinnappa Reddy, .J) 11

)
opining that a delay exceeding two years wo:ild so entitle the pri-
soner, we first observed :-
"First, let us get rid of the cob-webs of prejudice.
Sure, the murders were wicked and diabolic. The appe-
llant and his friends showed no mercy to their victims.
Why should any mercy be shown to them? But, gently,
we must remind ourselves it is not Shylock's pound of
flesh that we seek, nor a chilling of the human spirit.
It is justice to the killer too and not justice untempered
by mercy that we dispense. Of course, we cannot refuse
to pass the sentence of death where the circumstances
cry for it. But, the question is whether in a case where
after the sentence of death is given, the accused person
is made to undergo inhuman and degrading punishment
or where the execution of the sentence is endlessly de-
layed and the accused is made to suffer the most excru-
ciating agony and anguish, is it not open to a court of
appeal or a court exercising writ jurisdiction, in an appro-
priate proceeding to take note of the circumstance when
it is brought to its notice and give relief where neces-
sary?

After referring to Ediga Anamma, Lalla Singh, Bhagwan
Bux Singh, Sadhu Singh and,Sahai, we proceeded to quota Justice
Brennan's observation in Furman v. State of Georgia('), where he
had said:
"The prospect of pending execution exacts a fright-
ful toll during the inevitable long wait between the im-
position of sentence and the actual infliction of death,"

We then referred to the minority opinion of Lord Scarman
and Lord Brightman in Noel Riley v. Attorney-Genera/('), where
they had said :-
"It is no exaggeration, therefore, to say that the
jurisprudence of the civilised world, much of which is
derived from common law principles and the prohibition
against cruel and unusual punishments in the English
Bill of Rights, has recognised and acknowledged that
(!) 408 us 238,
(2) 11982] Crl. Law Review 679,
12 (1985) 2 S.C.R.

prolonged delay in executing a sentence of death can
make the punishment when it comes inhuman and de-
grading. As the Supreme Court of California commented
in Anderson case, it is cruel and has dehumanising effects.
Sentence of death is one thing ; sentence of death
followed by lengthy imprisonment prior to execution is
another.

It is of course true that a period of anguish and
suffering is an inevitable consequence of sentence of death.
But a prolongation of it beyond the time necessary for
appeal and consideration of reprieve is not. And it is no
answer to say that the man will struggle to stay alive. In
truth, it is this ineradicable human desire which makes
prolongation inhuman and degrading. The anguish of
alternating hope and despair, the agony of uncertainty,
the consequences of such suffering on the mental, emo-
tional, and physical integrity and health of the individual
are vividly described in the evidence of the effect of the
delay in the circumstances of these five cases. We need
not rehearse the facts, which are not in dispute. We do not
doubt that the appellants have proved that they have
been subjected to a cruel and dehumanising experi-
ence .........

Prolonged delay when it arises from factors outside
the control of the condemned man can render a decision
to carry out the sentence of death an inhuman and de-
grading punishment. It is, of course, for the applicant
or constitutional protection to show that the delay was
inordinate, arose from no act of his, and was likely to
cause such acute suffering that the infliction of the death
penalty would be in the circumstances which had arisen
inhuman or degrading. Such a case has been established
in our view, by these appellants."
We added,
"While we entirely agree with Lord Scarman and
Lord Brightman about the dehumanising effect of pro-
longed delay after the sentence of death, we enter a little
caveat, but only that we may go further. We think that
the cause of the delay is immaterial when the sentence
; I.A.A· HAMID v. MAHARASHTRA. (Chinnappa Reddy, J.) 13

is death. Be · the cause for the delay, the time necessary
A
for appeal and consideration of reprieve or some other
cause for which the accused himself may be responsible,
it would not alter the dehumanising character of the
delay."
Thereafter we proceeded to consider the implications of Art.
21 in the light of Menaka Gandhi, .Sunil, Batra, Bachan Singh,
Bhuvan Mohan Patnaik, Pandurang Sangzgiri, Champalal Punjaji B
Shah, Hussainara Khatoon and Jl,f.H. Hoskot.We then said:-

"So, what do we have now? Articles 14,19 and 21 aro
not mutually exclusive. They sustain, strengthen and
nourish each other. They are available to prisoners as well
as free men. Prison walls do not keep out Fundamental
c
Rii:hts. A person under sentence of death may also claim
Fundamental Rights. The fiat of Article 21, as explained,,
is that any procedure which deprives a person of his life or
liberty must be just, fair and resonable. Just, fair and
reasonable procedure implies a right to free legal scniccs D
where he cannot avail them. It implies a right to a speedy
trial. It implies humane conditions of detention, preven-
tive or punitive. 'Procedure established by law' docs not ·
end with the pronouncement of sentence; it includes the
carrying out of sentence. That is as far as we have gone
so far. It seems to us but a short step, but a step in the E
right direction, to hold that prolonged detention to await
the execution of a sentence of death is an unjust, unfair
and unreasonable procedure and the only way to undo
the wrong is to quash the sentence of death. In the United
State of America where the right to a speedy trial is a
Constitutionaily guaranteed right, the denial of a ·speedy F
trial has been held to entitle an accused person to the
·· dismissal of the indictment or the vacation of the sentence
(vide Strunk v. United States (1973] 37 L Ed. 2d 56).
Analogy of American law is not permissible, but interpre-
ting our Constitution sui generis, as we are bound to do,
we find no impediment in holding that the dehumanising G
•
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 n
!i
14 SUPREME COURT REPORTS (1985] 2 S.C.R

person shall be deprived of his life or personal liberty except
according to procedure establihed by law. The appropriate
relief in such a case is to vacate the sentence of death."

We proceeded to consider what delay could be considered
prolonged enough to attract the Constitutional protection of Art. 21,
• We thought that making all reasonable allowance for the time
necessary for appeal and consideration of reprieve, delay exceeding
two years in the execution of a sentence of death should be
considered sufficient to entitle the person under sentence of death
to invoke Art. 21 of the Constitution and demand the quashing of
the sentence of death.
,' '
Very shortly after the Court had pronounced its judgment,
in Vatheeswaran's case, in Sher Singh v. State of Punjab(l) another
Divison Bench of three learned Judges of this court presided over
by Cihandrachud, C.J. while expressing almost complete agreement
with most of what had been said in Vatheeswaran's case dissented
) from the opinion expressed by therein that a delay of two years and
more was sufficient to entitle a person under sentence of death to
invoke Art. 21 of th Constitution. The learned Judges first
observed:-

"But we must hasten to add that this Court has not
E taken the narrow view that the juridiction to interfere with
a death sentence can be exercised only in an appeal against
the judgment of conviction and sentence. The question
which arises in such appeals is whether the extreme penalty
provided by Jaw is "called for in the circumstances of the
case. The question which arises in proceedings such as
F those before us is whether, even if the death sentence was
the only appropriate sentence to impose in the case and
was therefore imposed, it will be harash and unjust to
execute that sentence by reason of supervening events.
In very recent times, the sentence of death has been
commuted to life imprisonment by this Court in quite a
G few cases for the the reason, inter alia, that the prisoner
was under the spectre of the sentence of death for an
unduly long time after the final confirmation of that
sentence, consequent upon the dismissal of the prisoner's
Special Leave Petition or Appeal by this Court. Tradi·

H (1) AIR 19ij3 SC 46~.
J.A.A. HAMID v. MAHARASHTRA (Chinnappa Reddy,J.) 15
tionally, subsequent events are taken into account in the ,
A
area of civil law. There is no reason why they should not
receive due consideration in other jurisdictions, particularly
when their relevance on the implementation or execution
of judicial verdicts is undeniable. Undoubtedly, principles
analogous to resjudicata govern all judicial proceedings but
when new situations emerge, particularly factual, after a B
verdict has assumed finality in the course of the hierarchical
process, advertence to those situations is not barred on the
ground that a final decision has been rendered already.
That final decision is not a decision on new facts. Courts
are never powerless to do justice, that is say, to ensure
• that the processes of law do not result in undue misery, c
guffering or hardship. That is why, even after the final
seal of approval is placed upon a sentence of death, this
Court has exercised its power to direct, ex debito justitiae,
that though the sentence was justified when passed, its
execution, in the circumstances of the case, is not justified
by reason of the unduly long time which has elapsed since D
the confirmation of that sentence by this Court. Some of
us dealing with this case have been parties to decisions
directing in appropriate cases, that the death sentence shall
not be excuted by reason of supervening circumstances."

They then proceeded to agree with our agreement with E
the view expressed by Lord Scarman and Lord Brightman. They
said:-

"Like our learned Brethren, we too consider that the

• • view expressed in this behalf by Lord Scarman and Lord
Brightman in the Privy Council decision of Neel Riley 1982
F

Cr!. Law Review 679 is. with respect, correct. The
majority in that case did not pronounce upon this
matter. The minority expressed the opinion that the
jurisprudence of the civilzed world has recognized and
acknowledged that prolonged delay in executing a G
sentence of death can make the punishment when it comes
inhuman and degrading. Sentence of death is one thing;
sentence of death followed by lengthy imprisonment
prior to execution is another. The prolonged anguish of
alternating hope and despair, the agony of uncertainty, the
consequences of such suffering on the mental, emotional
6
16 SUPREME COURT REPORTS [1985] 2 S.C.R.

and physical integrity and health of the individual can render
A the decision to execute the sentence of death an inhuman
and degrading punishment in the circumstances of a given
case.''

After referring to Robert Johnson's 'Condemned to die, life ,_,
under sentence of death', they observed :
B
"A prisoner who has experienced Jiving death for
years on end is therefore entitled to invoke the jurisdic-
tion of this Court for examining the question whether,
after all the agony and torment he has been subjected to,
it is just and fair to allow the sentence of death to be

• executed. That is the true implication of Art. 21 of the
Constitution and to that extent, we express our broad and
respectful agreement with our learned Brethren in their
visualisation of the meaning of that article. 'The horizons
of Art. 21 are ever widening and the final word on its
conspectus shall never have been said. So long as life lasts,
• i;o long shall it be the duty and endeavour of this Court to
give to the provisions of our Constitution a meaning which
will prevent human suffering and degradation. Therefore,
Art. 21 is as much relevant at the stage of execution of the
death sentence as it is in the interregnum between the
imposition of that sentence and its execution. The essence
E of the matter is that all procedure, no matter what the
stage, must be fair, just and reasonable. It is well-
established that a prisoner cannot be tortured or subjected
to unfair or inhuman treatmant (See Prabhakar Pandurang

F
Sanzgiri (AIR 1966 SC 424), Bhuvau Mohan Patniak
(AIR 1974 SC 2092) and Sunil Batra (AIR 1978 SCl!675).
...
It is a logical extension of the selfsame principle that the
death sentence, even if justifiably impose:!, cannot be
executed if supervening events make its execution harsh,
unjust or unfair. Art. 21 stands like a sentinel over
human misery, degradation and oppression. Its voice is
G
the voice of justice and fair play. That voice can never be
•ilenced on the ground that the time to heed to its impera-
tives is long since past in the story of a trial. It reverbera·
tes through all stages-the trial, the sentence, the incarcera-
tion and finally, the el\ecution of the sentence,"
H
J.A.A. HAMID v. MAHAl\ASHTRA (ChinnaPfia Reddy, J.) 17

After saying so much, the learned Judges found it impossible A
to agree, with that part of the judgment in T. V. Vatheesawaran v.
State of Tamil Nadu (supra), where it had been said that delay
exreeding two years in executing 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.
B
The reason was, they said ''The fixation of time limit of two years
does not seem to us to accord with the common experience of the
time normally consumed by the ljtigative process and the proceed-
ings before the executive." They also said that besides dalay ·
there were also other factors to be taken into account while
considering the question whether the sentence of death should be c
vacated. The observations of the learned Judges purporting to
dissent from the view taken in Vatheeswaran's case were rnade,
curiously enough, while admitting Sher Singh's petition on other
grounds. It was perhaps thought desirable and necessary to express
firmly their views on one of the questions raised which they were
D
not accepting while admitting the petition on other questions lest
further damage be done to the cause of justice by following the
wrong rule thought to have been laid dowh in Vatheeswaran's case
and unworthy people saved from the gallows. We do not wish to
dwell any further on this aspect of the matter except to point out
that as far as we know Referred Trials and Confirmation Cases are
dealt with speedily;by High Courts and are never kept pending longer
than two or three months. It is only when they reach this Court
that the delay occurs. But surely, our inability to devise a procedure
to deal expeditiously with such matters of life and death can be no
justification for silencing what the learned Chief Justice has himself • (I
so eloquently describted as 'the voice of justice and fairplay' which
demands that 'so long as life lasts, so long shall it be the duty and
endeavour of this Court to give to the provisions of our Constitution'
a meaning which will prevent human suffering and degradation.
'The case also raises the further question whether a Division Rench
of three Judges can purport to over rule the judgment of a Division G
Bench of two judges merely because three is larger than two.
The Court sits in Divisions of two and three judges for the sake of
convenience and it may be in-appropriate for a Division Bench of
three judges to purport to overrule the decision of a Division Bench
of two Judges. Vide Young v. Bristol Aeroplane Co. Ltd.(1) It may
\>e ot)\erwise w)\ere a F11ll Bene!\ or a Constitution Bench does so. ff
18 SUPREME COURT REPORTS [1985] 2 s.c.R.

A
We do not however desire to embark upon this question in this
case. In the present case we are satisfied that an over all view of
all the circumstances appears to us to entitle the petitioner to invoke
the protection of Art. 21 of the Constitution. We accordingly
quash the sentence of death and substitute in its place the sentence
of imprisonment for life.
B

H.S.K. Petition allowed.

C.

'( '

4.

(5) 1944 (2) ALL ER. 293