SHABNAMversusUNION OF INDIA & ORS

                     (2015) 8 S.C.R. 289


                          SHABNAM                                A
                               v.
                  UNION OF INDIA & ORS..

           (Writ Petition (Criminal) No. 88 of 2015)
                                                                 B
                        MAY27, 2015

        [A.K. SIKRI AND UDAY UM ESH LALIT, JJ.]

     Sentence/Sentencing:
                                                                 c
    Murder case - Death sentence - Conviction and
sentence upheld by Supreme Court- Within a week death
warrants issued by Sessions Judge - Writ petition challenging
same - Held: Death warrant was signed by the Sessions
                                                              0
Judge in haste without exhaustion of remedies available to
the convicts - This is impermissible and unwarranted.

    Death sentence - Procedure to be followed before
execution of death sentence - Essential safeguards ~
Sufficient notice to be given to convict before. issuance of E
death warrant- Warrant must specify exact date and time for
execution - Reasonable period of time must elapse between
the date of order on the execution warrant and date fixed -
Copy of execution warrant to be immediately supplied to the F
cbnvict - Where a convict is not in a position to avail legal
assistance, legal aid must be provided.                       ·

      Rights of convicts who are impos.ed death penalty- Held:
Convicts have judicial and administrative remedies - Right
to file review petition is a valuable right given to the convicts G
who are imposed death penalty- Convict also has a right to
file mercy petitions to the Governor of the State as well as the


                             289                                 H
290         SUPREME COURT REPORTS                 [2015] 8 S.C.R.
                                    .
A President of India - Suell' right cannot be .snatched by
  executing the death sentence before even giving such
  convicts a chance or opporlunity to avail the same - For this
  purpose, the State has to wait for reasonable period even
  after such convicts fail in the review petition if they so file -
B Constitution of/ndia, 1950-Arlicle 21.

         Peoples' Union for Democratic Rights (PUDR) v. Union
    of Ind/a & Ors. PIL No. 57810 of 2014 decided on
    28.01.2015; Shatrughan Chauhan v. Union of India & Ors.
c . (2014) 3 sec: 2014 (1) SCR 609; Mohd. Arif@Ashfaq v.
    Registrar, Supreme Courl offndia & Ors. (2014) 9 SCC 737;
    II. Sriharan @ Murugan v. Union of India & Ors. (2014) 4
    SCC 242; Maneka Gandhi v. Union of India (1978) 1 SCC
    248: 1978 (2) SCR 621 - relied on.
D
         Constitution of India, 1950:

         Arlic/e. 21 - Right to life - Right to Human dignity - .
      Elements of - Discussed.
E     Arlicle 21 - Right to Human dignity- Held: Condemned
  prisoners also have a right to dignity and execution of death
  sentence cannot be carried out in arbitrary, hurried and secret
  manner without allowing the convicts to exhaust all legal
F remedies - Sentence/Sentencing.
      National Legal Services Authority v. Union of India & Ors.
  (2014) 5 SCC 438; Furman v. Georgia 408 US 238 (1972);
  Gregg v. Georgia 428 US 153 (1976); Bachan Singh v. State
  of Punjab (1980) 2 SCC 684; Deena v. Union of India (1983)
G 4 SCC 645:1984 (1) SCR 1; Su nil Batra v. Delhi
  Administration & Ors. (1978) 4 SCC 494: 1979 (1) SCR
  392 - referred to.


H
          SHABNAM v. UNION OF INDIA & ORS.                       291


                   Case Law Reference                             A

  2014 (1) SCR 609             relied on.            Para 12

  (2014) 9 sec 737             relied on.            Para 13

  (2014) 4 sec 242             relied on.            Para 13 ·    B

  1978 (2) SCR 621             relied on.            Para 13

  (2014) s sec 438             referred to.          Para 13

  (1980) 2 sec 684             referred to.          Para 17      c
  1984 (1) SCR 1               referred to.          Para 18

  1979 (1) SCR 392             referred to.          Para 19
                                                                  D
    CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 88 of 2015

    Under Article 32 of the Constitution of India.

                              WITH                                E
    W. P. (Crl) No. 89/2015

     Anand Grover, Raju Ramachandran, Shadan Farasat,
Lubhyathi R., Shreya Rastogi, Nishant Gokhale, for the
                                                                  F
Petitioner.

    Pinky Anand, ASG, V. Mohan, Binu Tamta, Karan Seth,
Rajesh Ranjan (For Sushma Suri), Pragati Neekhra, Ameet
Singh, for the Respondents.
                                                                  G
    The Order of the Court was delivered by

A.K. SIKRI, J. 1. Rule.

    2) Ms. Pinky Anand, learned ASG, accepts notice on            H
292         SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A     behalf of Union of India and Ms. Pragati Neekhra, learned
      counsel, accepts notice on behalf of State of Uttar Pradesh.

           3) With the consent of the learned counsel appearing for
      the parties, we have taken up these petitions for final hearing
B     and propose to dispose of these writ petitions by this order.

       4) Writ Petition (Criminal) No. 88 of 2015 is filed by
  Shabnam and Writ Petition (Criminal) 89 of 2015 is filed by
  National Law University, Delhi, espousing the cause of Salim~
c Both Shabnam and Salim (hereinafter referred to as, "the
  convicts") were co-accused in a murder case, that was tried
  against them on the allegations that they had committed
  murders of seven persons who were the members of
  Shabnam's family during the intervening night of 14th and 15th
D April, 2008. They were tried together and after the trial, the
  learned Sessions Court returned with the finding holding them
  guilty of the said murders, for which they were charged and
  pronounced death sentence on both these convicts vide
  Judgment and Sentence dated 15.07.2010, subject to
E confirmation by the High Court.

            5) The High Court of Allahabad confirmed the death
      sentence of both the convicts vide Judgment and order dated
      26.04.2013. The Judgment of the High Court was challenged
F     in this Court and on 15.05.2015, the appeals of the convicts
      were dismissed by this Court as well, thereby confirming the
      conviction as well as sentence of death imposed on them.

        6) The present writ petitions are filed on the allegations
G. that on 21.05.2015, death warrants have been issued by the
   learned Sessions Judge, which are impermissible inasmuch
   as various remedies which are available to the convicts, even
   after the dismissal of the appeals by this Court, are still open
   and yet to be exercised by them. it is submitted that these
H convicts can file review petition seeking review of the judgment
           SHABNAM v. UNION OF INDIA& ORS.                          293
                    [AK. SIKRI, J.]

dated 15.05.2015. They also have the right to file mercy A
petitions to the Governor of Uttar Pradesh and to the President
of India. In these circumstances, the execution of the death
warrants within six days of the dismissal of the Criminal
Appeals is challenged as illegal and contrary to the provisions
of Article 21 of the Constitution of India.                     B

    7) Notice of these petitions was issued to the Union of
India as well as to the State of Uttar Pradesh on 25.05.2015.
Ms. Pinky Anand, learned ASG, has appeared on behalf of the
Union of India and Ms. Pragati Neekhra, learned counsel, has C
appeared on behalf of the State of Uttar Pradesh.

      8) Ms. Pinky Anand, leamedASG, has broughtto our notice
the instructions issued by the Ministry of Home Affairs,
Government of India, which delineates the procedure regarding        o
petitions for mercy in death sentence cases. She has referred
to the following portion from the said instructions which impose
certain duties on the Superintendent of Jail in connection with
petitions for mercy from or on behalf of the convicts in sentence
of death, paragraph (II) thereof reads as under:                     E

     "On receipt of the intimation of the dismissal by the
     Supreme Court of the appeal or the application for special
     leave to appeal to it lodged by or on behalf of the convict,
     in case the convict concerned has made no previous              F
   · petition for mercy, the Jail Superintendent shall forthwith
     inform him (the convict) that if he desires to submit a
     petition for mercy it should be submitted in writing within
     seven days of the date of such intimation."
                                                                     G
    9) Sh~ fairly stated that the death warrants would not be
executed immediately and the procedure laid down as per the
aforesaid instructions of the Ministry of Home Affairs shall be
followed. The learned counsel for the State of Uttar Pradesh
also informed this Court that after the death warrants dated         H
294          SUPREME COURT REPORTS                     [2015] 8 S.C.R.


A     21.05.2015 issued by the learned Sessions Judge were
      received by the Superintendent of Jail, the Superintendent of
      Jail sent these death warrants back to the learned Sessions
      Judge pointing out that the warrants were defective as the date
      and time of execution of the death sentence was not affixed
B     thereupon.

            10) The learned senior counsel appearing for the
      petitioners, on the other hand, submitted that merely following
      the procedure as contained in the instructions issued by the
C     Ministry of Home Affairs would not suffice. It was the
      submission of Mr. Anand Grover, learned senior counsel, that
      this procedure is applicable in respect of petitions for mercy.

        11) On the other hand, in so far as the present case is
o concerned, the stage of petition for mercy has not yet come
  inasmuch as the convicts have right to file an application for
  review in this Court seeking review of the Judgment dated
  15.05.2015, vide which, the appeals of both the convicts were
  dismissed. He has also drawn our attention to the Judgment
E of the Division Bench of the Allahabad High Court in a matter
  titled as Peoples' Union for Democratic Rights (PUDR) v.
  Union of India & Ors. 1 He has submitted that in the said
  case, the High Court has mandated the following procedure
  which has to be followed· before the execution of the death
F sentence. The said portion from the judgment is extracted
  below:

           "We are affirmatively of the view that in a civilized society,
           the execution of the sentence of death cannot be carried
G          out in such an arbitrary manner, keeping the prisoner in
           the dark and without allowing him recourse and
           information. Essential safeguards must be observed.
           Firstly, the principles of natural justice must be read into

H     1 PIL No. 57810 of 2014 decided on 28.01.2015
            SHABNAM v. UNION OF INDIA & ORS.                         295
                     [A.K. SIKRI, J.]

     the provisions of Sections 413 and 414 of Cr. P. C. and          A
     sufficient notice ought to be given to the convict before
     the issuance of a warrant of death by the sessions court
     that would enable the convict to consult his advocates and
     to be represented in the proceedings. Secondly, the
     warrant must specify the exact date and time for execution       B
     and not a range of dates which places a prisoner in a
     state of uncertainty. Thirdly, a reasonable period of time
     must elapse between the date of the order on the execution
     warrant and the date fixed or appointed in the warrant for
     the execution so that the convict will have a reasonable         C
     opportunity to pursue legal recourse against the warrant
     and to have a final meeting with the members of his family
     before the date fixed for execution. Fourthly, a copy of the
     execution warrant must be immediately supplied to the
                                                                      0
     convict. Fifthly, in those cases, where a convict is not in a
     position to offer a legal assistance, legal aid must be
     provided. These are essential procedural safeguards
     which must be observed if the right to life under Article 21
     is not to be denuded of its meaning and content."                E
    12) He also pointed out that this Court has laid down several
guidelines to govern cases involving capital punishment in the
case of Shatrughan Chauhan v. Union of India & Ors. 2

     13) In the present case, we find that this Court pronounced · F
the judgment dated 15.05.2015 confirming the death penalty
and within six days of the dismissal of the criminal appeals
filed by these convicts, the learned Sessions Judge issued
the death.warrants on 21.05.2015. This is clear1y impermissible
and unwarranted for various reasons, as discussed hereinafter: G

    (I) First and foremost reason is that the convicts have not
exhausted their judicial and administrative remedies, which
2 (2014) 3 .sec 1                                                     H
296          SUPREME COURT REPORTS                   (2015] 8 S.C.R.


A     are still open to them even iftheir appeals in the highest Court
      have failed affirming the imposition of death penalty. Those
      appeals were filed via the route of Article 136 of the
      Constitution. However, law gives such persons another chance,
      namely, to seek review of the orders so passed, by means of
B     filing of review petition. It is to provided under Article 137 of
      the Constitution. The limitation of 30 days is prescribed for
      filing such review petitions. We have to emphasize at this stage
      that in case of convicts facing death penalty, the remedy of
      review has been given high procedural sanctity.
c
        In the case of Mohd. Arif @Ashfaq v. Registrar,
  Supreme Courtoflndia & Ors. 3 , the Constitution Bench of
  this Court has laid down that the review petition in a case of
  death sentence shall be heard in the open court by giving an
D opportunity to the review petitioner to make oral submissions,
  unlike other review petitions which are decided by the Court
  by circulation in Chambers. Not only this, such a review petition
  is to be heard by a Bench consisting of minimum three Judges.
  Following discussion from the said Constitutional Bench
E judgment will bring home the importance which we are attaching
  to these review petitions:

          "30 ... A sentence is a compound· of any factors, including
          the nature of the offence as well as the circumstances
F         extenuating or aggravating the offence. A large number
          of aggravating circumstances and mitigating
          circumstances have been pointed out in Bachan Singh v.
           State of Punjab, (1980) 2 SCC 684, SCC at pp. 749-50,
           paras 202 & 206, that a Judge should take into account
G         when awarding the death sentence. Again, as pointed
          out above, apart from the fact that these lists are only
           illustrative, as clarified in Bachan Singh itself, different
          judicially trained minds can apply different aggravating and
H     3 (2014) 9 sec 131
        SHABNAM v. UNION OF INDIA & ORS.                         297
                 [A.K. SIKRI, J.]
                     '·

 mitigating circumstances to ultimately arrive at a A
 conclusion, on considering all relevant factors that the
 death penalty may or may not be awarded in any given
 case. Experience based on judicial decisions touching
 upon this aspect amply demonstrate such a divergent
 approach being taken. Though, it is not necessary to dwell B
 upon this aspect elaborately, at the same time, it needs to
·be emphasized that when on the same set of facts, one
 judicial mind can come to the conclusion that the
 circumstances do nqt warrant the death penalty, whereas
 another may feel it to be a fit case fully justifying the death C
 penalty, we feel that when a convict who has suffered the
 sentence of death and files a review petition, the necessity
 of oral hearing in such a review petition becomes an
 integral part of "reasonable procedure".
                                                                     D
 31. We are of the opinion that "reasonable procedure"
 would encompass oral hearing of review petitions arising
 out of death penalties. The statement of Justice Holmes,
 that the life of law is not logic; it is experience, aptly applies
 here. · ·                                                          ·E

32. The first factor mentioned above, in support of our
conclusion, is more fundamental than the second one.
Death penalty is irreversible in nature. Once a death
sentence is executed, that results in taking away the life F
of the convict. If it is found thereafter that such a sentence
was not wa•ranted, that would be of no use as the life of
that person cannot be brought back. This being so, we
feel that if the fundamental right to life is ;~volved, any
procedure to be just, fair and reasonable should take into G
account the two factors mentioned above. Tht being so,
              a
we feel that limited ciral hearing een at the review stage
is mandated by Art. 21 in all death sentence cases."
                                                                   H
298          SUPREME COURT REPORTS                     (2015] 8 S.C.R.


A          Therefore, the right to file Review Petition is a valuable
      right given to the convicts who are imposed death penalty.

            (II) That apart, right to file mercy petitions to the Governor
       of the State as well as to the President of India also remains in
B      tact. These remedies are also of substance and not mere
       formalities. This remedy is again a constitutional remedy as
       Executive Head is empowered to pardon the death sentence
       (this power lies with the President under Article 72 and with
       the Governor of the State under Article 161 of the Constitution).
C      Thus, power to pardon is a part of the constitutional scheme
       which has been reposed by the people through the Constitution
       in the Head of the State, and enjoys high status. In exercise of
       their powers, the President or the Governor, as the case may
       be, may examine the evidence afresh and this exercise of
D      power is clearly independent of the judiciary. It is clarified by
       this Court that while exercising such a power, the Executive is
       not sitting as a Court of Appeal. Rather power to grant
       remission of sentence is an act of grace, humanity in
       appropriate cases, i.e. distinct, absolute and unfettered in
E     ·nature (See Shatrughan Chauhan (supra)). Even this Court
       in \I. Sriharan @ Murugan v. Union of India & Ors.4
       observed that clemency procedure under Articles 72/161 of
       the Constitution provides a ray of hope to the condemned
F      prisoners and his family members for commutation of death
       sentence into life imprisonment. Of course, in a given case, it
       would be for the convict to make out a justifiable case for
       remission of death sentence. However, what is emphasized
       in the present context is that this is again a constitutional
G      remedy provided to the convicts of death sentence and they
       have a right to avail this remedy which cannot be snatched by
      executing the death sentence before even giving such convicts
       a chance or opportunity to avail the same. For this purpose,

H 4 (2014) 4 sec 242
          . SHABNAM v. UNION OF INDIA& ORS.                           299
                  · [AK. SIKRI, J.]

State has to wait for reasonable period, even after such A
convicts fail in the review petition, if they so file.

    Otherwise, there would be violation of the famous rhetoric
of Emperor Ashoka who said 'State should not punish with
vengeance'.                                                            B

      (Ill) Article 21 of the Constitution lays down that nobody
shall be deprived of his life al'!d liberty except according to the
 procedure established by law. After long judicial debate, it
 now stands settled that the procedure established by law has          c
to be 'due procedure' (See Maneka Gandhi v. Union of
 /ndia 5). By judicial interpretation, this Court has read the
principle of reasonableness into the said procedure
contemplated by Article 21, holding that it must be 'right and
just and fair' and not a~bitrary, fanciful or oppressive. Even as      o
 per the statute book, this procedure does not culminate with
the dismissal of appeals of the convicts by the final Court. No
doubt, when an accused is tried of an offence by a competent
court of law and is imposed such death penalty and the said
death penalty is upheld by the highest Court, the procedure E
that is established by law has been followed up to this stage.
However, in the statutory framework, further procedural
safeguards in the form of judicial review as well as mercy
petitions are yet to be traversed. This.would also be covered
by the expression 'procedure established by law' occurring in F
Article 21. Therefore, till the time limitation period for filing the
review petition and thereafter reasonable time for filing the
mercy petition has not lapsed, issuing of death warrants would
be· violative of Article 21.
                                                                       G
    (IV) There is another facet ofrightto life enshrined in Article
21 of the Constitution which needs to be highlighted at this
juncture, namely, 'human dignity'. Article 21 has its traces in

s (1978) 1 sec 248                                                     H
300         SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A     the dignity of human being. It has been recognized as part of
      Article 21 of the Constitution. We would like to extract the
      following passage from National Legal Services Authority
      v. Union of India & Ors. 6 :
B      "106. The basic principle of the dignity and freedom of
  the individual is common to all nations, particularly those having
  democratic set up. Democracy requires us to respect and
  develop the free spirit of human being which is responsible for
  all progress in human history. Democracy is also a method by
C which we attempt to raise the living standard of the people
  and to give opportunities to every person to develop his/her
  personality. It is founded on peaceful co-existence and
  cooperative living. If democracy is based on the recognition
  of the individuality and dignity of man, as a fortiori we have to
D recognize the right of a human being to choose his sex/gender
  identity which is integral his/her personality and is one of the
  most basic aspect of self-determination dignity and freedom.
  In fact, there is a growing recognition that the true measure of
  development of a nation is not economic growth; it is human
E dignity."

           14) Once we recognize this aspect of dignity of human
      being, it does not end with the confirmation of death sentence,
      but goes beyond and remains valid till such a convict meets
 F    his/her destiny. Therefore, the process/procedure from
      confirmation of death sentence by the highest Court till the
      execution of the said sentence, the convict is to be treated
      with human dignity to the extent which is reasonable and
      permissible in law.
G
           15) This right to human dignity has many elements. First
      and foremost, human dignity is the dignity of each human being
      'as a human being'. Another element, which needs to be

H e (2014) s sec 438
           SHABNAM v. UNION OF INDIA& ORS.                          301
                    [A.K. SIKRI, J.]

highlighted, in the context of the present case, is that human A
dignity is infringed if a person's life, physical or mental welfare
is armed. It is in this sense torture, humiliation, forced labour,
etc. all infringe on human dignity. It is in this context many rights
of the accused derive from his dignity as a human being. These
may include the presumption that every person is innocent until B
proven guilty; the right of the accused to a fair trial as well as
speedy trial; right of legal aid, all part of human dignity. Even
after conviction, when a person is spending prison life, allowing
humane conditions in jail is part of human dignity. Prisons
reforms or Jail reforms measures to make convicts a reformed C
person so that they are able to lead normal life and assimilate
in the society, after serving the jail term, are motivated by human
dignity jurisprudence.

     16) In fact, this principle of human dignity has been used      D
frequently by Courts in the context of considering the death
 penalty itself. Way back in the year 1972, the United States
 Supreme Court kept in mind this aspect in the case of Furman
 v. Georgia7 . The Court, speaking through Brennan, J., while
 considering the application of Eighth Amendment's prohibition       E
 on cruel and unusual punishments, summed up the previous
jurisprudence on the Amendment as 'prohibit(ing) the infliction
of uncivilized and inhuman punishments. The State, even as it
punishes, must treat its members with respect for their intrinsic    F
worth as human beings. A punishment is 'cruel and unusual',
therefore, if it does not comport with human dignity'. In Gregg
v. Georgia8 , that very Court, again through Brennan, J.,
considered that 'the fatal constitutional infirmity in the
punishment of death is ttiat it treats "members of the human         G
race as non-humans, as objects to be toyed with an
discarded. (It is), thus, inconsistent with the fundamental

7 408 us 238 (1972
8428us153(1976)                                                      H
302       SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A premise of the clause that even the vilest criminal remains a
  human being possessed of common human dignity'. The
  Canadian Supreme Court, the Hungarian Constitutional Court
  and the South African Supreme Court have gone to the extent
  of holding that capital punishment constitutes a serious
B impairment of human dignity and imposes a limitation on the
  essential content of the fundamental rights to life and human
  dignity and on that touchstone declaring that dignity as
  unconstitutional.

C      17) In this country, however, since the death penalty has
  been held to be constitutionally valid (See Bachan Singh v.
  State of Punjab9 ), we do not have to travel to that extent. At
  the same time, even if death sentence is to be awarded, it has
  to be in accord with due dignity. In fact, this element of human
D dignity is well recognized in choosing the mode of execution
  of death sentence with general consensus that method of
  execution of death sentence should be such which is certain,
  humane, quick and decent. This was so stated in the 35th
  Report of the Law Commission on Capital Punishment way
E back in the year 1967. Thereafter, the Law Commission of
  India brought out a consultation paper on 'Mode of Execution
  of Death Sentence and Incidental Matters' and made
  comparative analysis of hanging, intravenous lethal injection
F and shooting as the mode of execution. While undertaking
  this study, the Law Commission also recognized and
  emphasized standards of human decency in the following
  words:

        "The execution of the death sentence by hanging by rope
G       has to be judged with reference to the objective factors
        such as the international standards or norms or the climate
        of the international opinion, modern penological theories
        and evolving standards of human decency. The standards
H e (1980) 2 sec 684
             SHABNAM v. UNION OF INDIA& ORS.                       303
                      [A.K. SIKRI, J.]

     of human decency with reference to death punishment is A
     required to be judged with reference to various aspects
     which vary from society to society depending on the
     cultural and spiritual tradition of the society, its history and
     philosophy and its sense of moral and ethical values. To
     take an example, if a sentence of cutting off the arm for B
     the offence of the theft or a sentence of stoning to death
     fpr the offence of adultery were prescribed by law, as
     practiced in South Africa, there can be no doubt that such
     punishment would be condemned as barbaric and cruel
     in our country, even though it may be regarded as C
     proportionate to the offence and hence reasonable and
     just in some other countries. So also the standards of
     human decency vary from time to time even with in the
     same society. In an evolutionary society, the standards of
                                                                      0
     human decency are progressively evolving to higher levels
     and what was regarded as legitimate and reasonable
     punishment proportionate to the offence at one time may .
     now according to the evolving standards of human
     decency, be regarded as barbaric and inhuman E
     punishment wholly disproportionate to the offence."

     18) United Nations Economic and Social Council
(ECOSOC), in its Economic and Social Council Resolution
1984/50, annex. General Assembly Resolution 29/118, 1984, F
described one of the important standard and safeguards
against the death penalty enunciated in safeguard No.9 as
"where. capital punishment occurs it shall be carried out so
as to inflict minimum possible suffering'. Even this Court,
more than quarter century ago, laid down fourfold test that is to G
be satisfied in the execution of death penalty in Deena v.
Union oflndia 10 . This quadruple test is:

     (i) The act of execution should be as quick and simple as
 a
1 (1983) 4   sec 645                                                H
304          SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A     possible and free from anything that unnecessarily sharpens
      the poignancy of the prisoner's apprehension.

          (ii) The act of the execution should produce immediate
      unconsciousness passing quickly into the death.
B
           (iii) It should be decent.

           (iv) It should not involve mutilation.

        19) We can also draw sustenance from another judgment
C of this Court in the case of Sunil Batra v. Delhi Administration
  & Ors.11 Though in the context of jail conditions for those
  prisoners sentenced to death, the Court held that putting them
  in solitary confinement was impermissible and provision to this
  effect was unconstitutional and violative of a prisoner's
D fundamental rights under Article 21, 20(2), 19 and 14 of the
  Constitution. The Court held that prisoner in jail still retains his
  fundamental rights. In the eternal words of Justice V.R. Krishna
  Iyer in the said judgment:

E          "And in our constitutional order it is axiomatic that the
           prison laws do not swallow up the fundamental rights of
           the legally unfree, and, as sentinals on the qui-vive, courts
           will guard freedom behind bars, tempered, of course, by
           environmental realism but intolerant of torture by executive
F          echelons. The policy of the law and the paramountcy of
           the Constitution are,beyond purchase by authoritarians
           glibly invoking 'dangerousness' of inmates and peace in
           prisons". It is so obvious that the aforesaid ageless
           message has its root in human dignity which has to be
G          preserved even when a prisoner is sentenced to death."

           20) Thus, we hold that condemned prisoners also have a
      right to dignity and execution of death sentence cannot be

H     11 (1978) 4   sec 494
            SHABNAM v. UNION OF INDIA& ORS.                             305
                     [A.K. SIKRI, J.]

carried out in a arbitrary, hurried and secret manner without A
allowing the convicts to exhaust all legal remedies.

     21) We find that the procedure prescribed by the High
Court of Allahabad in PUDR's case (supra) is in consonance
with Article 21 of the Constitution. While executing the death           B
sentence, it is mandatory.to follow the said procedure and it is
also necessary for the authorities to keep in mind the
guidelines contained in the judgment of this Court in
Shatrughan Chauhan's case (supra).
                                                                         c
     22) Since we find that the death warrants were signed by
the Sessions Judge in a haste, without waiting for the
exhaustion of the aforesaid remedies on the part of the convicts,
the same are hereby quashed and set aside.
                                                                         D
     23) We direct the respondents to follow the procedure,
particularly the five steps, which are already extracted above,
as contained in PUDR's case (supra) passed by the High
Court of Allahabad, for executing the death sentence.

     24) We make the Rule absolute. These writ petitions are             E
allowed in the aforesaid terms.

Devika Gujral                                Writ Petitions allowed .




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