Supreme Court of India
SHATRUGHAN CHAUHAN & ANR.versusUNION OF INDIA & ORS.
- Citation
- 2014 INSC 46
- Decided
- 21 January 2014
- Disposal
- Case Allowed
- Bench
- P SATHASIVAM
Holding
Unexplained, inordinate and unreasonable delay in the disposal of mercy petitions, together with other supervening circumstances such as mental illness, constitutes grounds for commuting a death sentence to life imprisonment.
Summary
The Supreme Court entertained a batch of writ petitions filed under Article 32 by death‑row convicts and their families alleging that the executive had unreasonably delayed the disposal of their mercy petitions under Articles 72 and 161, and that other supervening circumstances such as mental illness, solitary confinement and procedural lapses violated their fundamental right to life under Article 21. After analysing the constitutional nature of the pardon power, the limited scope of judicial review, and the jurisprudence on inordinate delay, the Court held that unexplained, excessive delay – often spanning many years – constitutes a supervening circumstance warranting commutation of death sentences to life imprisonment. The Court also addressed issues of mental illness, solitary confinement, and procedural violations, and issued comprehensive guidelines for the handling of mercy petitions. Consequently, the death sentences of all petitioners were commuted to life imprisonment.
Issues considered
- The constitutional scope of judicial review over executive mercy powers under Articles 72 and 161.
- Whether an inordinate, unexplained delay in disposing mercy petitions amounts to a supervening circumstance justifying commutation of death sentences.
- The impact of mental illness, solitary confinement, and procedural lapses on the validity of a death sentence under Article 21.
- The applicability of the delay principle to offences under TADA and other statutes.
Legislation cited
- Code of Criminal Procedure, 1973s. Section 354(5)
- Constitution of Indias. Article 161, s. Article 21, s. Article 32, s. Article 72
- Indian Penal Code, 1860s. Section 302, s. Section 303 (struck down)
- International Covenant on Civil and Political Rights (ICCPR)
- Prisons Act, 1894s. Section 30(2)
- Terrorist and Disruptive Activities (Prevention) Act (TADA)
Subjects
death penaltymercy petitionArticle 21Article 32unreasonable delaycommutationmental illnesssolitary confinementprocedural lapseTADAconstitutional law
Judgment
(2014] 1 S.C.R. 609
SHATRUGHAN CHAUHAN & ANR. A
v.
UNION OF INDIA & ORS.
(Writ Petition (Criminal) No. 55 of 2013)
JANUARY 21, 2014 .
B
[P. SATHASIVAM, CJI, RANJAN GOGOi AND
SHIVA KIRTI SINGH, JJ.]
Mercy jurisprudence:
c
Constitution of India, 1950:
Articles 721161 - Commutation of death sentence to life
imprisonment - Effect of supervening circumstances - Held:
Undue long delay in execution of sentence of death entitle D
the condemned prisoner to approach Supreme Court u/Article
32 - However, Supreme Court will only examine the
circumstances surrounding the delay that has occurred and
· those that have ensued after sentence was finally confirmed
by the judicial process - Supreme Court would not reopen the
conclusion already reached but may consider the question E
of inordinate delay - Delay .caused by circumstances beyond
the prisoners' control mandates commutation of death
sentence - Unexplained delay is a ground for commutation
of death sentence into life imprisonment and the said
supervening circumstance is applicable to all types of cases F
including the offences under TADA - The only aspect the
courts have to satisfy is that the delay was unreasonable and
unexplained or inordinate at the hands of the executive -
Insanity is also .one of the supervening circumstances that
warrant for commutation of death sentence - In the instant writ G
petitions, in the light of principles and facts of each case, the
death sentence of all the petitioners is commuted into
imprisonment for life - Code of Criminal Procedure, ·1973 -
Prisons Act, 1894.
609 H
610 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Articles 721161 - Nature of power guaranteed under -
Held: The power vested in the President u!Article 72 and the
Governor u/Article 161 is a Constitutional duty - It is neither
a matter of grace nor a matter of privilege but is an important
constitutional responsibility reposed by the people in the
B highest authority - The power of pardon is essentially an
executive action, which needs to be exercised in the aid of
justice and not in defiance of it - The said power is to be
exercised on the aid and advice of the Council of Ministers -
Also, Articles 721161 of the Constitution entail remedy to all
c the convicts and is not limited to only death sentence cases.
Articles 721161 - Limited Judicial Review of the executive
orders u/Article 721161 - Held: Executive orders u/Articles 721
161 should be subject to limited judicial review based on the
rationale that the power u/Articles 721161 is per se above
D judicial review, however, the manner of exercise of power is
certainly subject to judicial review - Administrative law.
Articles 721161 - Processing the mercy petition -
Procedure adopted u!Articles 721161- Discussed.
E
Articles 721161 - Mercy petition - Limitation period for
adjudication - Held: After the completion of the judicial
process, if the convict files a mercy petition to the Governor/
President, it is incumbent on the authorities to dispose of the
same expeditiously - Though no time limit can be fixed for
F the Governor and the President, it is the duty of the executive
to expedite the matter at every stage, viz., calling for the
records, orders and documents filed in the court, preparation
of the note for approval of the Minister concerned, and the
ultimate decision of the constitutional authorities - Limitation.
G
Articles 721161 - Mercy petition - Procedural Lapses -
Held: Ministry of Home Affairs, Government of India has
detailed procedure regarding handling of petitions for mercy
in death sentence cases - The Rules make it clear that at
H every stage the matter has to be expedited and there cannot
SHATRUGHAN CHAUHAN v. UNION OF INDIA 611
be any delay at the instance of the officers, particularly, the A
Superintendent of Jail, in view of the language used therein
as "at once" - Apart from these Rules· regarding presentation
of mercy petitions and disposal thereof, necessary instructions
have been issued for preparation of note to be approved by
the Home Minister and for passif]g appropriate orders by the s
President of India .
.Article 21 - Right to life - Rights of accused vis-a-vis right
of victim - Held: While Article 21 is the paramount principle
on which rights of the convicts are based, it must be
considered along with the rights of the victims or the C
deceased's family as also societal consideration since these
elements form part of the sentencing process as well.
Article 32 - Writ petition by death convict asserting
violation of Article 21 on account of undue, unreasonable and D
prolonged delay in disposal of his mercy petition - Held:
When Article 21 is violated, it is not a question of judicial
review but of protection of fundamental rights and courts give
substantial relief not merely procedural protection - The
question of violation of Article 21, its effects and the E
appropriate relief is the domain of Supreme Court - There is
no question of remanding the matter for consideration
because Supreme Court is the custodian and enforcer of
fundamental rights and the final interpreter of the Constitution
- Further, Article 21 is the paramount principle on which rights F
of the convict are based, this must be considered along with
the rights of the victims or the deceased's family as also
societal consideration.
Guidelines:
G
Mercy petitions - Guidelines for effective governing of
the procedure of filing mercy petitions and for the cause of
the death convicts - Framed.
Code of Criminal Procedure, 1973:
H
612 SUPREME COURT REPORTS [2014] 1 S.C.R.
A s.354(5) - Death sentence - Execution by hanging -
Held: The method of hanging prescribed by s.354(5) is not
violative of the guaranteed right ulArticle 21 of the Constitution
on the basis of scientific evidence and opinions of eminent
medical persons which assured that hanging is the least
B painful way of ending the life.
Prison Act, 1894:
s.30(2) - Solitary confinement- In case of prisoner under
sentence of death - Held: Solitary confinement, even if
C mollified and modified marginally, is not sanctioned by s.30
of the Act for prisoners 'under sentence of death' - The crucial
holding uls.30(2) is that a person is not 'under sentence of
death', even ifthe Sessions Court has sentenced him to death
subject to confirmation by the High Court - He is not 'under
D sentence of death' even if the High Court imposes, by
confirmation or fresh appellate infliction, death penalty, so
Jong as an appeal to the Supreme Court is likely to be or has
been moved or is pending - Even if Supreme Court has
awarded capital sentence, s.30 does not cover him so long
E as his petition for mercy to the Governor and/or to the
President permitted by the Constitution, has not been
disposed of - Thus, only after rejection of mercy petition by
the Governor and the President, and on further application, if
there is no stay of execution by the authorities, the person is
F under sentence of death - During that interregnum, he attracts
the custodial segregation specified in s.30(2), subject to the
ameliorative meaning assigned to the provision - To be
'under sentence of death' means 'to be under a finally
executable death sentence'.
G The instant writ petitions, under Article 32 of the
Constitution of India were 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
H
.SHATRUGHAN CHAUHAN v. UNION OF INDIA 613
mercy petitions by the Governor and the President of A
India. In these petitions, the petitioners sought relief
against alleged infringement of certain fundamental rights·
on account of failure on the part of the executive to
dispose of the mercy petitions filed under Article 72/161
of the Constitution within a reasonable time. It was the B
claim of the petitioners that the impugned executive
orders of rejection of mercy petitions against 15 accused
persons were passed without considering the
supervening events which were crucial for deciding the
same. c
Disposing of the writ petitions, the Court
HELD:
1. Maintainability of the Petitions . D
The stand of the petitioners was that the exercise of
the constitutional power vested in the executive specified
under Article 72/161 has violated the fundamental rights
of the petitioners. This Court, as in past, entertained the
petitions of the given kind and issued appropriate orders. E
Accordingly, the·petitions are held maintainable. [Para 9]
[644-G-H; 645-A-B]
T. V. Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC
68: 1983 (2) SCR 348, Sher Singh and Ors. vs. State of F
Punjab (1983) 2 SCC 344: 1983 AIR 465; Triveniben vs.
State of Gujarat (1988) 4 SCC 574: 1989 AIR 142; R.D
Shetty vs. International Airport Authority (1979) 3 SCC 489:
1979 (3) SCR1014 - relied on.
Minerva Mills Ltd. and Ors. vs. Union of India and Ors. G
(1980) 2 SCC 625; A.R Antu/ay vs. Union of India (1988) 2
SCC 602: 1988 (1) Suppl. SCR 1 - referred to.
2. Nature of power guaranteed under Article 72/161 of the
Constitution H
614 SUPREME COURT REPORTS [2014) 1 S.C.R.
A Both Articles 72 and 161 repose the power of the
people in the highest dignitaries, i.e., the President or the
Governor of a State, as the case may be, and there are
no words of limitation indicated in either of the two
Articles. The President or the Governor, as the case may
B be, in exercise of power under Article 721161 respectively,
may examine the evidence afresh and this exercise of
power is clearly independent of the judiciary. Article 72/
161 of the Constitution entail remedy to all the convicts
and is not limited to only death sentence cases and must
c be understood accordingly. It contains the 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. The power vested
in the President under Article 72 and the Governor under
0
Article 161 of the Constitution is a Constitutional duty. As
a result, it is neither a matter of grace nor a matter of
privilege but is an important constitutional responsibility
reposed by the people in the highest authority. The
E power of pardon is essentially an executive action, which
needs to be exercised in the aid of justice and not in
defiance of it. Further, it is well settled that the power
under Article 72/161 of the Constitution of India is to be
exercised on the aid and advice of the Council of
Ministers. [Paras 12, 14, 17] [649-D-E; 650-D-E; 652-C-E]
F
Kehar Singh vs. Union of India & Anr., (1989) 1 SCC
204: 1988 (3) Suppl. SCR 1102; Epuro Sudhakar & Anr. vs.
Govt. of A.P. & Ors., (2006) 8 SCC 161: 2006 (7) Suppl.
SCR 81; Kuljeet Singh vs. Lt. Governor (1982) 1 SCC 417:
G 1982 (3) SCR 58- relied on.
Biddle vs. Perovoch 274 US 480 - referred to.
3. Limited Judicial Review of the executive orders under
Article 721161
H
SHATRUGHAN CHAUHAN v. UNION OF INDI(\ 615
3.1. The power of the executive to grant pardon A
under Article 72/161 is a Constitutional power and this
Court, on numerous occasions, has declined to frame
guidelines for the e~ercise of power under the said
Articles for two reasons. Firstly, it is a settled proposition
that there is always a presumption that the constitutional B
authority acts with application of mind. Secondly, this
Court, over the span of years, unanimously took the view
that considering the nature of power enshrined in Article
72/161, it is unnecessary to spell out specific guidelines.
Nevertheless, the executive orders under Article 72/161 C
should be subject to limited judicial review based on the
rationale that the power under Article 72/161 is per se
above judicial review but the manner of exercise of power
is certainly subject to judicial review. [paras 18, 19) [652-
F-H; 654-B-C]
D
Bikas Chatterjee vs. UO/ (2004) 7 SCC 634: 1998 (2)
SCR 206; Swaran Singh vs. State of U.P AIR 1998 SC
2026; Satpal and Anr. vs. State of Haryana and Ors. AIR 2000
SC 1702: 2000 (3) SCR 858 - relied on.
E
3.2. Though the contours of power under Article 72/
161 have not been defined, this Court, in *Narayan Dutt
case has held that the exercise of power is subject to
challenge c;m the following grounds: If the Governor had
been found to have exercised the power himself without F
being advised by the government; if the Governor
transgressed his jurisdiction in exercising the said
power; if the Governor had passed the order without
applying his mind; the order of the Governor was ma/a
fide; or The order of the Governor was passed on some G
extraneous considerations. [Para 20) [654-E-H]
*Narayan Dutt vs. State of Punjab (2011) 4 SCC 353:
2011 (4) SCR 983 - relied on.
3.3. The President/Governor is not bound to hear a H
616 SUPREME COURT REPORTS [2014] 1 S.C.R.
A petition for mercy before taking a decision on the petition.
The manner of exercise· of the power under the said
articles is primarily a matter of discretion and ordinarily
the courts would not interfere with the decision on merits.
However, the courts retain the limited power of judicial
B review to ensure that the constitutional authorities
consider all the relevant materials before arriving at a
conclusion. The legal basis for taking supervening
circumstances into account for deciding mercy petition
is that Article 21 inheres a right in every prisoner till his
c last breath and this Court has to protect that right even
if the noose is being tied on the condemned prisoner's
neck. [Paras 21, 22] [656-D-G]
Jagdish vs. State of Madhya Pradesh (2009) 9 SCC
495: 2009 (14) SCR 727 - relied on.
D
Effect of Supervening Circumstances
The petitioners asserted the following events as the
supervening circumstances, for commutation of death
sentence to life imprisonment. Delay, Insanity, Solitary
E Confinement, Judgments declared per incuriam,
Procedural Lapses. [Para 24] [657-B-D]
4.1.1. (i) Delay
The following is the procedure adopted under Article
F 72/161 for processing the mercy petition. The death row
convicts invariably approach the Governor under Article
161 of the Constitution of India with a mercy petition after
this Court finally decide the matter. During the pendency
of the mercy petition, the execution of death sentence is
G stayed. As per the procedure, once the mercy petition is
rejected by the Governor, the convict prefers mercy
petition to the President. Thereafter, the mercy petition
received in President's office is forwarded to the Ministry
of Home Affairs. Normally, the mercy petition consists of
H one or two pages giving grounds for mercy. To examine
SHATRUGHAN CHAUHAN v. UNION OF INDIA 617
the mercy petition so received and to arrive at a A
conclusion, the documents like copy of the judgments of
the trial Court, the High Court and the Supreme Court are
requested from the State Government. The other
documents required include details of the decision taken
by the Governor under Article 161 of the Constitution, the B
recommendations of the State Government in regard to
grant of mercy petition, copy of the records of the case,
nominal role of the convict, health status of the prisoner
and other related documents. All these details are
gathered from the State/Prison authorities after the c
receipt of the mercy petition and, according to the Union
of India, it takes a lot of time and involve protracted
correspondence with prison authorities and State
Government. It is also claimed by the Union of India that
these documents are then extensively examined and in 0
some sensitive cases, various pros and cons are weighed
to arrive at a decision. Sometimes, person or at their
instance some of their relatives, file mercy petitions
repeatedly which cause undue delay. In other words,
according to the Union of India, the time taken in
E
examination of mercy petitions may depend upon·the
nature of the case and the scope of inquiry to be made.
It may also depend upon the number of mercy petitions
submitted by or on behalf of the accused. [Paras 26, 27]
[657-F-H; 658-A-F]
F
4.1.2. The decision taken by the President under
Article 72 is communicated to the State Government/
Union Territory concerned and to the prisoner through
State Government/Union Territory. As per List II Entry 4
of the Seventh Schedule to the Constitution of India, G
"Prisons and persons detained therein" is a State subject.
Therefore, all steps for execution of capital punishment
including informing the convict and his/her family, etc. are
required to be taken care of by the concerned State
Governments/Union Territories in accordance with their H
618 SUPREME COURT REPORTS [2014] 1 S.C.R.
A jail manual/rules etc. [Para 29] [659-B-D]
4.1.3. The right to life is the most fundamental of all
rights. The right to life, as guaranteed under Article 21 of the
Constitution of India, provides that no person shall be
8 deprived of his life and liberty except in accordance with the
procedure established by law. While Article 21 is the
paramount principle on which rights of the convicts are
based, it must be considered along with the rights of the
victims or the deceased's family as also societal
consideration since these elements form part of the
C sentencing process as well. [Paras 31, 32] [659-G-H; 660-E]
Smt. Triveniben vs. State of Gujarat (1988) 4 SCC 574:
1989 AIR 142; Smt. Triveniben vs. State of Gujarat, (1989)
1 sec 678: 1989 (1) SCR 509 - relied on.
D
State of West Bengal vs. Committee for Democratic
Rights, West Bengal, (2010) 3 SCC 571: 2010 (2) SCR 979;
Ediga Anamma vs. State of A.P., 1974(4) SCC 443: 1974 (3)
SCR 329 - referred to.
E Earl Pratt vs. AG for Jamaica [1994] 2 AC 1 - Privy
Council- referred to.
4.1.4. Undue long delay in execution of sentence of
death will entitle the condemned prisoner to approach
this Court under Article 32. However, this Court will only
F examine the circumstances surrounding the delay that
has occurred and those that have ensued after sentence
was finally confirmed by the judicial process. This Court
cannot reopen the conclusion already reached but may
consider the question of inordinate delay to decide
G whether the execution of sentence should be carried out
or should be altered into imprisonment for life. Keeping
a convict in suspense while consideration of his mercy
petition by the President for many years is certainly an
agony for him/her. It creates adverse physical conditions
H and psychological stresses on the convict under
· SHATRUGHAN CHAUHAN v. UNION OF INDIA 619
sentence of death. Indisputably, this Court, while A
considering the rejection of the clemency petition by the
President, under Article 32 read with Article 21 of the
Constitution, cannot excuse the agonizing delay caused
to the convict only on the basis of the gravity of the
crime •. [Paras 38, 39] [664-E-H; 665-A] 8
4.1.5. India has been a signatory to the Universal
Declaration of Human Rights, 1948 as well as to the
United Nations Covenant on Civil and Political Rights,
1966. Both these conventions contain provisions
outlawing cruel and degrading treatment and/or C
punishment. Pursuant to the judgment of this Court in
**Vishaka, international covenants to which India is a
party are a part of domestic law unless they are contrary
to a specific law in force. [Para 40] [665-B-C]
D
**Vishaka vs. State of Rajasthan, (1997) 6 SCC 241:
1997 (3) Suppl. SCR 404 - relied on.
Earl Pratt vs. AG for Jamaica [1994] 2 AC 1 - Privy
Council; Catholic Commission for Justice & Peace in E
Zimbabwe vs. Attorney General, 1993 (4) S.A. 239 - Supreme
Court of Zimbabwe; Soering vs. United Kingdom [App. No.
14038/88, 11 Eur. H.R. Rep. 439 (1989)] - European Court
of Human Rights; Attorney General vs. Susan Kigula,
Constitutipnal Appeal No. 3 of 2006 - ·Supreme Court of
Uganda; Herman Mejia and Nicholas Guevara vs. Attorney F
General, A.O. 2000 Action No. 296 - Supreme Court of
Belize - referred to.
4.1.6. It is clear that after the completion of the judicial
process, if the convict files a mercy petition to the G
Governor/President, it is incumbenl-on the authorities to
dispose of the same expeditiously. Though-ho time limit
can be fixed for the Governor and the President, it is the
duty of the executive to expedite the matter at every
stage, viz., calling for.the records, orders and documents H
620 SUPREME COURT REPORTS [2014) 1 S.C.R.
A filed In the court, preparation of the note for approval of
the Minister concerned, and the ultimate decision of the
constitutional authorities. Accordingly, if there is undue,
unexplained amd inordinate delay in execution due to
pendency of mercy petitions or the executive as well as
the constitutional authorities have failed to take note of/
8
consider the relevant aspects, this Court Is well within its
powers under Article 32 to hear the grievance of the
convict and commute the death sentence into life
Imprisonment on this ground alone however, only after
satisfying that the delay was not caused at the Instance
C of the accused himself. To this extent, the jurisprudence
has developed In the light of the mandate given in (>:ur
- '
Constitution as well as various Universal Declarat!J>~
and directions issued by the United Nations. [Par• 41,
D 42) [665-H; 666-A-E]
4.1.7. The procedure prescribed by law, which
deprives a person of his life and liberty must be just, fair
and reasonable and such procedure mandates humane
conditions of detention preventive or punitive. In this line,
E although the petitioners were sentenced to death based
on the procedure established by law, the inexplicable
delay on account of executive is unexcusable. Since it
is well established that Article 21 of the Constitution does
not end with the pronouncement of sentence but
F extends to the stage of execution of that sentence, as
already asserted, prolonged delay in execution of
sentence of death has a dehumanizing effect on the
accused. Delay caused by circumstances beyond the
prisoners' control mandates commutation of death
G sentence. Under the ground of supervening events,
when Article 21 is held to be violated, it is not a question
of judicial review but of protection of fundamental rights
and courts give substantial relief not merely procedural
protection. The question of violation of Article 21, its
H effects and the appropriate relief Is the domain of this
SHATRUGHAN CHAUHAN v. UNION OF INDIA 621
Court. There is no question of remanding the matter for A
consideration because this Court is the custodian and
enforcer of fundamental rights and the final interpreter of
the Constitution. Further, this Court is best equipped to
adjudicate the content of those rights and their
requirements in a particular fact situation. This Court has B
always granted relief for violation of fundamental rights
and has never remanded the matter. For example, in
cases of preventive detention, violation of free speech,
externment, refusal of passport etc., the impugned action
is quashed, declared illegal and violative of Article 21, but c
never remanded. It would not be appropriate to say at this
point that this Court should not give relief for the violation
of Article 21. [Paras 43, 44] [666-F-H; 667-F-H; 668-A-B]
Maneka Gandhi vs. Union of India (1978) 1 SCC 248:
1978 (2) SCR 621; Noel Noel Riley vs. Attorney General, D
(1982) Crl.Law Review 679 - referred to.
4.1.8. Obviously, the mercy petitions disposed of
from 1989 to 1997 witnessed the impact of the
observations in the disposal of mercy petitions. Since the E
average time taken for deciding the mercy petitions
during this period was brought down to an average of 5
months from 4 years thereby paying due regard to the
observations made in the decisions of this Court, but
unfortunately, now the history seems to be repeating F
itself as now the delay of maximum 12 years is seen in
disposing of the mercy petitions under Article 72/161 of
the Constitution. The mercy petitions under Article 72/161
can be disposed of at a much faster pace than what is
adopted now, if the due procedure prescribed by law is G
followed in verbatim. Though guidelines to define the
contours of the power under Article 72/161 cannot be laid
down, however, the Union Government, considering the
nature of the power, set out certain criteria in the form of
circular as under for deciding the mercy petitions. H
622 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Personality of the accused (such as age, sex or mental
deficiency) or circumstances of the case (such as
provocation or similar justification); Cases in which the
appellate Court expressed doubt as to the reliability of
evidence but has nevertheless decided on conviction;
B Cases where it is alleged that fresh evidence is obtainable
mainly with a view to see whether fresh enquiry is
justified; Where the High Court on appeal reversed
acquittal or on an appeal enhanced the sentence; Is there
any difference of opinion in the Bench of High Court
c Judges necessitating reference to a larger Bench;
Consideration of evidence in fixation of responsibility in
gang murder case; Long delays in investigation and trial
etc. These guidelines and the scope of the power set out
above make it clear that it is an extraordinary power not
limited by judicial determination of the case and is not to
0
be exercised lightly or as a matter of course. In view of
the jurisprudential development with regard to delay in
execution, another criteria may be added so as to require
consideration of the delay that may have occurred in
disposal of a mercy petition. In this way, the
E constitutional authorities are made aware of the delay
caused at their end which aspect has to be conside1ed
while arriving at a decision in the mercy petition. The
obligation to do so can also be read from the fact that,
as observed by the Constitution Bench in Triveniben,
F delays In the judicial process are accounted tor in the
final verdict of the Court terminating the judicial exercise.
[Paras 46, 47, 48, 49] [669-B-H; 670-A-F]
4.1.10. Another vital aspect is that, Article 21 is the
G paramount principle on which rights of the convict are
based, this must be considered along with the rights of
the victims or the deceased's family as also societal
consideration since these elements form part of the
sentencing process as well. It is the stand of the
H respondents that the commutation of sentence of death
SHATRUGHAN CHAUHAN v. UNION OF INDIA 623
based on delay alone will be against the victim's interest. A
It is true that the question of sentence always poses a
complex problem, which requires a working compromise
between the competing views based on reformative,
deterrent and retributive theories of punishments. As a
consequence, a large number of factors fall for B
consideration in determining the appropriate sentence.
[Paras 50, 51] [670-G-H; ~71-A-B]
Ram Narain vs. State of Uttar Pradesh (1973) 2 SCC 86
- relied on.
c
4.1.11. The aims of punishment are now considered
to be retribution, justice, deterrence, reformation and
protection and modern sentencing policy reflects a
combination of several or all of these aims. The main aim
of punishment in judicial thought, however, is still the
0
protection of society and the other objects frequently
receive only secondary consideration when sentences
are being decided. All these aspects were emphatically
considered by this Court while pronouncing the final
verdict_ against the petitioners thereby upholding the
sentence of death imposed by the High Court. E
Nevertheless, the same accused (petitioners) were before
this court under Article 32 petition seeking commutation
of sentence on the basis of undue delay caused in
execution of their levied death sentence. There is
distinction under both circumstances. Under the former F
scenario, the petitioners herein were the persons who
were accused of the offence wherein the sentence of
'death was imposed but in later scenario, the petitioners
herein approached this Court as a victim of violation of
guaranteed fundamental rights under the Constitution G
seeking commutation of sentence. This distinction must
be considered and appreciated. [Paras 52, 53] [671-E-F;
672-A-E]
Ha/sbury's Laws of-England; (4th Edition: Vol. II: para
482) - referred to. H
624 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Rationality of Distinguishing between Indian Penal Code,
1860 And Terrorist and Disruptive Activities (Prevention)
Act Offences for Sentencing Purpose
4.2.1. Only delay which could not have been avoided
even if the matter was proceeded with a sense of
8
urgency or was caused in essential preparations for
execution of sentence may be the relevant factors under
such petitions in Article 32. Considerations such as the
gravity of the crime, extraordinary cruelty involved therein
C or some horrible consequences for society caused by the
offence are not relevant after the Constitution Bench
ruled in ***Bachan Singh case that the sentence of death
can only be imposed in the rarest of rare cases. Meaning,
of course, all death sentences imposed are impliedly the
most heinous and barbaric and rarest of its kind. The
D legal effect of the extraordinary depravity of the offence
exhausts itself when court sentences the person to death
for that offence. Law does not prescribe an additional
period of imprisonment in addition to the sentence of
death for any such exceptional depravity involved in the
E offence. [Para 57] [673-G-H; 674-A-C]
Devender Pal Singh Bhullar vs. State (NCT) of Delhi
(2013) 6 sec 195 per incuriam
F ***Bachan Singh vs. State of Punjab (1980) 2 SCC 684
- referred to.
4.2.2. It is open to the legislature in its wisdom to
decide by enacting an appropriate law that a certain fixed
period of imprisonment in addition to the sentence of
G death can be imposed in some well defined cases but the
result cannot be accomplished by a judicial decision
alone. The unconstitutionality of this additional
incarceration is itself inexorable and must not be treated
as dispensable through a judicial decision. [Para 58] [674-
H D-E]
SHATRUGHAN CHAUHAN v. UNION OF INDIA 625
Mahendra Nath Das vs. Union of India and Ors. (2013) A
6 sec 253 - relied on.
4.2.3. Section 303 IPC provides that "no person shall
be deprived of his life or personal liberty except according
to the procedure established by law". Since Section 303
8
IPC excludes judicial discretion, the Constitution Bench
in ****Mithu case has concluded that such a law must
necessarily be stigmatized as arbitrary and oppressive.
rn is further clear that no one should be deprived of
equality contained in Article 14 as also the right conferred C
by Article 21 of the Constitution regarding his life or
personal liberty except according to the procedure
established by law. Unexplained delay is one of the
grounds for commutation of sentence of death into life
imprisonment and the said supervening circumstance is
applicable to all types of cases including the offences D
under TADA. The only aspect the courts have to satisfy
is that the delay must be unreasonable and unexplained
or inordinate at the hands of the executive. The argument
that a distinction can be drawn between IPC and non-IPC
offences since the nature of the offence is a relevant E
factor is liable to be rejected at the outset. [Paras 65, 69,
70] [678-D-E; 681-F-H; 682-A-B]
****Mithu vs. State of Punjab (1983) 2 SCC 277: 1983
(2) SCR 690; Sunil Batra vs. Delhi Administration (1978) 4 F
sec 494: 1979 (1) SCR 392 - relied on.
4.3. (ii) Insanity/Mental Illness/Schizophrenia
India is a member of the United Nations and has
ratified the International Covenant on Civil and Political G
Rights (ICCPR). A large number of United Nations
international documents prohibit the execution of death
sentence on an insane person. Clause 3(e) of the
Resolution 2000165 dated 27 .04.2000 of the U.N.
Commiuion on Human Rights titled "The Question of H
626 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Death Penalty" urges "all States that still maintain the
death pena/ty... not to impose the death penalty on a
person suffering from any form of mental disorder or to
execute any such person". Similarly, Clause 89 of the
Report of the Special Rapporteur on Extra-Judicial
B Summary or Arbitrary Executions published on
24.12.1996 by the UN Commission on Human Rights
under the caption "Restrictions on the use of death
penalty" states that "the imposition of capital punishment
on mentally retarded or insane persons, pregnant women
c and recent mothers is prohibited". Further, Clause 116
thereof under the caption "Capital punishment" urges
that "Governments that enforce such legislation with
respect to minors and the mentally ill are particularly called
upon to bring their domestic criminal laws into conformity
with international legal standards". India too has similar
0
line of law and rules in the respective State Jail Manuals.
Paras 386 and 387 of the U.P. Jail Manual applicable to
the State of Uttarakhand. Similar provisions are available
in Prison Manuals of other States in India. These
E materials, particularly, the directions of the United Nations
International Conventions, of which India is a party, clearly,
show that insanity/mental illness/schizophrenia is a
crucial supervening circumstance, which should be
considered by this Court in deciding whether in the facts
and circumstances of the case death sentence could be
F commuted to life imprisonment. In addition, after it is
established that the death convict is insane and it is duly
certified by the competent doctor, undoubtedly, Article 21
protects him and such person cannot be executed
without further clarification from the competent authority
G about his mental problems. It is also highlighted by
relying on commentaries from various countries that
civilized countries have not executed death penalty on an
insane person. In view of the well established laws both
at national as well as international sphere, insanity is one
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 627
of the supervening circumstances that warrants for A
commutation of death sentence to life imprisonment.
[Paras 73, 74, 77, 78, 79] [682-G-H; 683-A; 685-A-C; 686-
D; 687-A-F]
4.4. (iii) Solitary Confinement
B
The grievance of some of the petitioners was that they
were confined in solitary confinement from the date of
imposition of death sentence by the Sessions Court
which was contrary to the provisions of the Indian Penal
Code, 1860, the Code of Criminal Procedure, 1973, C
Prisons Act and Articles 14, 19 and 21 of the Constitution
and it is certainly a form of torture. However, the·
respective States have outrightly denied having kept any
of the petitioners in solitary confinement in violation of
existing laws. It was submitted that they were kept D
separately from the other prisoners for safety purposes.
In other words, they were kept in statutory segregation
and not per se in solitary confinement. The solitary
confinement, even if mollified and modified marginally, is
not sanctioned by Section 30 of the Prisons Act for E
prisoners 'under sentence of death'. The crucial holding
under Section 30(2) is that a person is not 'under
sentence of death', even if the Sessions Court has
sentenced him to death subject to confirmation by the
High Court. He is not 'under sentence of death' even if F
the High Court imposes, by confirmation or fresh appellate
infliction, death penalty, so long as an appeal to the
Supreme Court is likely to be or has been moved or is
pending. Even if this Court has awarded capital sentence,
it was held that Section 30 does not cover him so long G
as his petition for mercy to the Governor and/or to the
President permitted by the Constitution, has not been
disposed of. Of course, once rejected by the Governor
and the President, and on further application, there is no
stay of execution by the authorities, the person is under
H
628 SUPREME COURT REPORTS [2014] 1 S.C.R.
A sentence of death. During that interregnum, he attracts
the custodial segregation specified in Section 30(2),
subject to the ameliorative meaning assigned to the
provision. To be 'under sentence of death' means 'to be
under a finally executable death sentence'. [Paras 80, 82]
B [687-G-H; 688-A-B; 692-E-H; 693-A]
Sunil Batra vs. Delhi Administration and Ors. etc. (1978)
4 SCC 494: 1979 (1) SCR 392 - relied on.
4.5. (iv) Judgments Declared Per lncuriam
c
The argument that the trial court or the High Court
relied onladverted to certain earlier decision which were
elither doubted or held per incuriam is not relevant. [Paras
85] [693-D-E]
D Machhi Singh vs. State of Punjab (1983) 3 SCC 470:
1983 (3) SCR 413; Ravji alias Ramchandra vs. State of
Rajasthan (1996) 2 SCC 175: 1995 (6) Suppl. SCR 195;
Sushi( Murmu vs. State of Jharkhand (2004) 2 SCC 338:
2003 (6) Suppl. SCR 702; Dhananjoy Chatterjee vs. State
E of WB. (1994) 2 SCC 220: 1994 (1) SCR 37; State of U.P.
vs. Dharmendra Singh (1999) 8 SCC 325: 1999 (3 ) Suppl.
SCR 52; Surja Ram vs. State of Rajasthan (1996) 6 SCC
271: 1996 ( 6 ) Suppl. SCR 783; Swamy Shraddananda
(2) vs. State of Karnataka (2008) 13 SCC 767: 2008 (11)
F SCR 93; Sangeet and Anr. vs. State of Haryana (2013) 2
SCC 452: 2012 (13) SCR 85; Gurvail Singh vs. State of
Punjab (2013) 2 SCC 713: 2013 (1) SCR 783 - referred
to.
G 4.6. (v) Procedural Lapses
4.6.1. Ministry of Home Affairs, Government of India
has detailed procedure regarding handling of petitions
for mercy in death sentence cases. As per the said
procedure, Rule I enables a convict under sentence of
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 629
death to submit a petition for mercy within seven days A
after and exclusive of the day on which the
Superintendent of Jail informs him of the dismissal by the
Supreme Court of his appeal or of his application for
special leave to appeal to the Supreme Court. Rule II
prescribes procedure for submission of petitions. As per B
this Rule, such peUtions shall be addressed to, in the
case of States, to the Governor of the State at the first
instance and thereafter to the President of India and in
the case of Union Territories directly to the President of
India. As soon as mercy petition is received, the c
execution of sentence shall in all cases be postponed
pending receipt of orders on the same. Rule Ill states that
the petition shall in the first instance, in the case of States,
be sent to the State concerned for consideration and
orders of the Governor. If after consideration it is rejected, 0
it shall be forwarded to the Secretary to the Government
of India, Ministry of Home Affairs. If it is decided to
commute the sentence of death, the petition addressed
to the President of India shall be withheld and intimation
to that effect shall be sent to the petitioner. Rule V states
that in all cases in which a petition for mercy from a E.
convict under sentence of death is to be forwarded to the
Secretary to the Government of India, Ministry of Home
Affairs, the Lt. Governor/Chief Commissioner/
Administrator or the Government of the State concerned,
as the case may be, shall forward such petition, as F-
expeditiously as possible, along with the records of the
case and his or its observations in respect of any of the
grounds urged in the petition. Rule VI mandates that
upon receipt of the orders of the President, an
acknowledgement shall be sent to the Secretary to the G
Government of India, Ministry of Home Affairs,
immediately in the manner prescribed. In the case of
Assam and Andaman and Nicobar Islands, all orders will
be communicated by telegraph and the receipt thereof
shall be acknowledged by telegraph. In the case of other H -
630 SUPREME COURT REPORTS [2014) 1 S.C.R.
A States and Union Territories, if the petition is rejected, the
orders will be communicated by express letter and
receipt thereof shall be acknowledged by express letter.
Orders commuting the death sentence will be
communicated by express letters, in the case of Delhi
s and by telegraph in all other cases and receipt thereof
shall be acknowledged by express letter or telegraph, as
the case may be. Rule Vlll(a) enables the convict that if
there is a change of circumstance or if any new material
is available in respect of rejection of his earlier mercy
c petition, he is free to make fresh application to the
President for reconsideration of the earlier order. [Para
91] (695-D-H; 696-A-F]
4.6.2. Specific instructions relating to the duties of
Superintendents of Jail in connection with the petitions
D for mercy for or on behalf of the convicts under sentence
of death have been issued. Rule I mandates that
immediately on receipt of warrant of execution,
consequent on the confirmation by the High Court of the
sentence of death, the Jail Superintendent shall inform
E the ·convict concerned that if he wishes to appeal to the
Supreme Court or to make an application for special
leave to appeal to the Supreme Court under any of the
relevant provisions of the Constitution of India, he/she
should do so within the period prescribed in the Supreme
F Court Rules. Rule II makes it clear that, on receipt of the
intimation of the dismissal by the Supreme Court of the
appeal or the application for special leave to appeal filed -
by or on behalf of the convict, in case the convict
concerned has made no previous petition for mercy, the
G Jail Superintendent shall forthwith inform him 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. Rule Ill says that if the convict submits a
petition within the period of seven days prescribed by
H Rule II, it should be addressed, in the case of States, to
SHATRUGHAN CHAUHAN v. UNION OF INDIA 631
the Governor of the State at the first instance and, A
thereafter, to the President of India and in the case of
Union Territories, to the President of India. The
Superintendent of Jail shall forthwith dispatch it to the
Secretary to the State Government in the Department
concerned or the Lt. Governor/Chief Commissioner/ B
Administrator, as the case may be, together with· a
covering letter reporting the date fixed for execution and
shall certify that the execution has been stayed pending
receipt of orders of the Government on the petition. Rule
IV mandates that if the convict submits petition after the c
period prescribed by Rule II, the Superintendent of Jail
shall, at once, forward it to the State Government and at
the same time telegraphed the substance of it requesting
orders whether execution should be postponed stating
•that pending reply sentence will not be carried out. The 0
above Rules make it clear that at every stage the matter
has to be expedited and there cannot be any delay at the
instance of the officers, particularly, the Superintendent
of Jail, in view of the language used therein as "at once".
Apart from the above Rules regarding presentation of E
mercy petitions and disposal thereof, necessary
instructions have been issued for preparation of note to
~e approved by the Home Minister and for passing
appropriate orders by the President of India. [paras 92,
93, 94] [696-G-H; 697-A-H]
F
4.6.3. Every State has separate Prison Manual which
speaks about detailed procedure, receipt placing
required materials for approval of the Home Minister and
the President for taking decision expeditiously. Rules also
provide steps to be taken by the Superintendent of Jail G
after the receipt of mercy petition and subsequent action
after disposal of the same by the President of India.
Almost all the Rules prescribe how the death convicts are
to be treated till final decision is taken by the President
of India. The elaborate procedure clearly shows that even H
632 SUPREME COURT REPORTS [2014] 1 S.C.R.
A death convicts have to be treated fairly in the light of
Article 21 of the Constitution of India. Nevertheless, it is
the claim of all the petitioners herein that all these rules
were not adhered to strictly and that is the primary reason
for the inordinate delay in disposal of mercy petitions. For
B illustration, on receipt of mercy petition, the Department
concerned has to call for all the records/materials
connected with the conviction. Calling for piece-meal
records instead of all the materials connected with the
conviction should be deprecated. When the matter is
C placed before the President, it is incumbent upon the part
of the Home Ministry to place all the materials such as
judgment of the Trial Court, High Court and the final Court,
viz., Supreme Court as well as any other relevant material
connected with the conviction at once and not call for the
documents in piece meal. [Paras 95, 96] [698-A-F]
0
5. In the light of principles and facts of each case, the
death sentence of all the petitioners is commuted into
imprisonment for life. [para 265] [746-G-H]
E Guidelines:
6. In W.P (Crl) No 56 of 2013, Peoples' Union for
Democratic Rights have pleaded for guidelines for
effective governing of the procedure of filing mercy
petitions and for the cause of the death convicts. It is well
F settled law that executive action and the legal procedure
adopted to deprive a person of his life or liberty must be
fair, just and reasonable and the protection of Article 21
of the Constitution of India inheres in every person, even
death-row prisoners, till the very last breath of their lives.
G In view of the disparities in implementing the already
existing laws, the following guidelines for safeguarding
the interest of the death row convicts are framed:
1. Solitary Confinement: This Court, in Sunil
H Batra held that solitary or single cell
SHATRUGHAN CHAUHAN v. UNION OF INDIA 633
confinement prior to rejection of the mercy A
petition by the President is unconstitutional.
Almost all the prison Manuals of the States
provide necessary rules governing the
confinement of death convicts. The rules
should not be interpreted to run counter to the B
above ruling and violate Article 21 of the
Constitution.
2. Legal Aid: There is no provision in any of the
Prison Manuals for providing legal aid, for C
preparing appeals or mercy petitions or for
accessing judicial remedies after the mercy
petition has been rejected. Various judgments
of this Court have held that legal aid is a
fundamental right under Article 21. Since this
Court has also held that Article 21 rights inhere D
in a convict till his last breath, even after
rejection of the mercy petition by the
President, the convict can approach a writ
court for commutation of the death sentence
on the ground of supervening events, if E
available, and challenge the rejection of the
mercy petition and legal aid should be
provided to the convict at all stages.
Accordingly, Superintendent of Jails are
directed to intimate the rejection of mercy F
petitions to the nearest Legal Aid Centre apart
from intimating the convicts.
3. Procedure in placing the mercy petition before
the President: The Government of India has G
framed certain guidelines for disposal of mercy
petitions filed by the death convicts after
disposal of their appeal by the Supreme Court.
As and when any such petition is received or
H
634 SUPREME COURT REPORTS [2014] 1 S.C.R.
A communicated by the State Government after
the rejection by the Governor, necessary
materials such as police records, judgment of
the trial court, the High Court and the Supreme
Court and all other connected documents
B should be called at once fixing a time limit for
the authorities for forwarding the same to the
Ministry of Home Affairs. Even here, though
there are instructions, we have come across
that in certain cases the Department calls for
c those records in piece-meal or one by one and
in the same way, the forwarding Departments
are also not adhering to the procedure/
instructions by sending all the required
materials at one stroke. This should be strictly
followed to minimize the delay. After getting all
D
the details, it is for the Ministry of Home Affairs
to send the recommendation/their views to the
President within a reasonable and rational
time. Even after sending the necessary
particulars, if there is no response frortl the
E office of the President, it is the responsibility
of the Ministry of Home Affairs to send
periodical reminders and to provide required
materials for early decision.
F 4. Communication of Rejection of Mercy Petition
by the Governor: No prison manual has any
provision for informing the prisoner or his
family of the rejection of the mercy petition by
the Governor. Since the convict has a
G constitutional right under Article 161 to make
a mercy petition to the Governor, he is entitled
to be informed in writing of the decision on
that mercy petition. The rejection of the mercy
petition by the Governor should forthwith be
communicated to the convict and his family in
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 635
writing or through some other mode of A
communication available.
5. Communication of Rejection of the Mercy
Petition by the President: Many, but not all,
prison manuals have provision for informing 8
the convict and his family members of the
rejection of mercy petition by the President. All
States should inform the prisoner and their
family members of the rejection of the mercy
petition by the President. Furthermore, even C
where prison manuals provide for informing
· the prisoner of the rejection of the mercy
petition, we have seen that this information is
always communicated orally, and never in
writing. Since the convict has a constitutional
right under Article 72 to make a mercy petition D
to the President, he is entitled to be informed
in writing of the decision on that mercy
petition. The rejection of the mercy petition by
the President should forthwith be
communicated to the convict and his family in E
writing.
6. Death convicts are entitled as a right to receive
a copy of the rejection of the mercy petition by
the President and the Governor. F
7. Minimum 14 days notice for execution: Some
prison manuals do not provide for any
minimum period between the rejection of the
mercy petition being communicated to the
prisoner and his family and the scheduled date G
of execution. Some prison manuals have a
minimum period of 1 day, others have a
minimum period of 14 days. It is necessary
that a minimum period of 14 days be stipulated
between the receipt of communication of the H
636 SUPREME COURT REPORTS [2014] 1 S.C.R.
A rejection of the mercy petition and the
scheduled date of execution for the following
reasons:-
(a) It allows the prisoner to prepare himself
mentally for execution, to make his
B
peace with god, prepare his will and
settle other earthly affairs.
(b) It allows the prisoner to have a last and
final meeting with his family members. It
c also allows the prisoners' family
members to make arrangements to travel
to the prison which may be located at a
distant place and meet the prisoner for
the last time. Without sufficient notice of
D the scheduled date of execution, the
prisoners' right to avail of judicial
remedies will be thwarted and they will
be prevented from having a last and
final meeting with their families.
E
It is the obligation of the Superintendent
of Jail to see that the family members of
the convict receive the message of
communication of rejection of mercy
petition in time.
F
8. Mental Health Evaluation: We have seen that
in some cases, death-row prisoners lost their
mental balance on account of prolonged
anxiety and suffering experienced on death
G row. There should, therefore, be regular mental
health evaluation of all death row convicts and
appropriate medical care should be given to
those in need.
9. Physical and Mental Health Reports: All prison
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 637
manuals give the Prison Superintendent the A
discretion to stop an execution on account of
the convict's physical or mental ill health. It is,
therefore, necessary that after the mercy
petition is rejected and the execution warrant
is issued, the Prison Superintendent should B
satisfy himself on the basis of medical reports
by Government doctors and psychiatrists that
the prisoner is in a fit physical and mental
condition to be executed. If the
Superintendent is of the opinion that the c
prisoner is not fit, he should forthwith stop the
execution, and produce the prisoner before a
Medical Board for a comprehensive evaluation
and shall forward the report of the same to the
State Government for further action. D
10. Furnishing documents to the convict: Most of
the death row prisoners are extremely poor
and do not have copies of their court papers,
judgments, etc. These documents are must for
preparation of appeals, mercy petitions and E
accessing post-mercy judicial remedies which
are available to the prisoner under Article 21
of the Constitution. Since the availability of
these documents is a necessary pre-requisite
to the accessing of these rights, it is necessary F
that copies of relevant documents should be
furnished to the prisoner within a week by the
prison a.uthorities to assist in making mercy
petition and petitioning the courts.
G
11. Final Meeting between Prisoner and his
Family: While some prison manuals provide for
a final meeting between a condemned prisoner
and his family immediately prior to execution,
many manuals do not. Such a procedure is H
638 SUPREME COURT REPORTS [2014] 1 S.C.R.
A intrinsic to humanity and justice, and should
be followed by all prison authorities. It is
therefore, necessary for prison authorities to
facilitate and allow a final meeting between the
prisoner and his family and friends prior to his
B execution.
12. Post Mortem Reports: Although, none of the
Jail Manuals provide for compulsory post
mortem to be conducted on death convicts
after the execution, we think in the light of the
c repeated arguments by the petitioners herein
asserting that there is dearth of experienced
hangman in the country, the same must be
made obligatory. [Para 259] [738-C-H, A-H;
740-A-H· 741-A-H· 742-A-H· 743-A-D]
D ' ' '
7. The method of hanging prescribed by Section
354(5) of the Code was held not violative of the
guaranteed right under Article 21 of the Constitution on
the basis of scientific evidence and opinions of eminent
E medical persons which assured that hanging is the least
painful way of ending the life. By making the performance
of post mortem obligatory, the cause of the death of the
convict can be found out, which will reveal whether the
person died as a result of the dislocation of the cervical
F vertebrate or by strangulation which results on account
of too long a drop. Our Constitution permits the execution
of death sentence only through procedure established
by law and this procedure must be just, fair and
reasonable. Making post mortem obligatory will ensure
G just, fair and reasonable procedure of execution of death
sentence. [Para 259 & 260] [745-B-E]
Mohd Ajmal Kasab vs. State of Maharashtra (2012) 9
SCC 1: 2012 (8) SCR 295; Deena alias Deen Dayal and
Ors. vs. Union of India (1983) 4 SCC 645: 1984 (1) SCR 1
H - Relied on.
SHATRUGHAN CHAUHAN v. UNION ,,OF INDIA 639
Conclusion: A
Mercy jufisprudence is a part of evolving standard of
decency, which is the hallmark of the society. Like the
death sentence is passed lawfully, the execution of the
sentence must also be in consonance with the
Constitutional mandate and not in violation of the B
constitutional principles. It is well established that
exercising of power under Article 72/161 by the President
or the Governor is a constitutional obligation and not a
mere prerogative. Considering the high status of office,
the Constitutional framers did not stipulate any outer time C
limit for disposing the mercy petitions under the said
Articles, which means it should be decided within
reasonable time. However, when the delay caused in
disposing the mercy petitions is seen to be unreasonable,
unexplained and exorbitant, it is the duty of this Court to D
step in and consider this aspect. Right to seek for mercy
under Article 72/161 of the Constitution is a constitutional
right and not at the discretion or whims of the executive.
Every Constitutional duty must be fulfilled with due care
and diligence; otherwise judicial interference is the E ,
command of the Constitution for upholding its values.
Retribution has no Constitutional value in our largest
democratic country. In India, even an accused has a de
facto protection under the Constitution and it is the
Court's duty to shield and protect the same. Therefore, F
when the judiciary interferes in such matters, it does not
really interfere with the power exercised under Article 72/
161 but only to uphold the de facto protection provided
by the Constitution to every convict including death
convicts. [Paras 261 to 264] [745-F-G; 746-A-F] G
Case Law Reference:
(1980) 2 sec 625 Referred to Para 6
1988- (1) Suppl. SCR 1 Referred to Para 6
H
640 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 1979 (3) SCR 1014 relied on Para 10
1988 (3) Suppl. SCR 1102 Relied on Para 11
2006 (7) Suppl. SCR 81 Relied on Para 13
274 us 480 Referred to Para 15
B
1982 (3) SCR 58 Relied on Para 16
1998 (2) SCR 206 Relied on Para 18
AIR 1998 SC 2026 Relied on Para 19
c
2000 (3) SCR 858 Relied on Para 19
2011 (4) SCR 983 Relied on Para 20
2009 (14) SCR 727 Relied on Para 22
D 2010 (2 ) SCR 979 Referred to Para 32
1974 ( 3) SCR 329 Referred to Para 33
1989 AIR 142 Relied on Para 34
E 1989 (1) SCR 509 Relied on Para 35
1997 (3) Suppl. SCR 404 Relied on Para 40
(1982) Crl.Law Review 679 Referred to Para 43
(1973) 2 sec 86 Relied on Para 51
F
(2013) 6 sec 195 per lncurium Para 55
(1980) 2 sec 684 Referred to Para 57
(2013) 6 sec 253 Relied on Para 63
G
1983 (2) SCR 690 Relied on Para 65
1979 (1) SCR 392 Relied on Para 65,81
1983 (3) SCR 413 Referred to Para 85
H 1995 (6) Suppl. SCR 195 Referred to Para 85
SHATRUGHAN CHAUHAN v. UNION OF INDIA 641
2003 (6) Suppl. SCR 702 Referred to Para 85 A
1994 (1) SCR 37 Referred to Para 85
1999 (3) Suppl. SCR 52 Referred to Para 85
1996 (6) Suppl. SCR 783 Referred to Para 85 B
2008 (11) SCR 93 Referred to Para 86
2012 (13) SCR 85 Referred to Para 86
2013 (1) SCR 783 Referred to Para 86
c
2012 (8) SCR 295 Relied on Para 227
1984 (1) SCR 1 Relied on Para 257
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 55 of 2013. D
Under Article 32 of the Constitution of India.
WITH
W.P. (Crl.} Nos. 34, 56, 136, 139, 141, 132, 187, 188, 190, 191, E
192 & 193 of 2013.
V.C. Mishra, AG, Mohan Prasaran, SG, L. Nageshwar
Rao, Siddharth Luthra, ASG, T.R. Andhyarujina, Ram
Jethmalani, Anand Grover, C.A. Sundaram, R. Basant, Colin
Gonsalves, Mukul Gupta, Gaurav Bhatia, AAG, Jyoti Mendiratta, 'F
P.S. Sudheer, Dr. Yug Mohit Chaudhry, Siddhartha, Sharma,
Prashanto Chandra Sen, S. Prabhu Ramasubramanian, K.
Paari Vendhan, Jagadeesha B.N., Rishi Maheshwari, Raj
Kumari Biju, Bushra Qoami, Anshul Gupta, Raj Kumar Kaushik,
Puja Sharma, Rishabh Sancheti, Padma Priya, T. Mahipal, G
Tufail A. Khan, Sidharth Dave, Meenakshi Grover, Supriya
Juneja, Anjali Chauhan, Vikas Bansal, Suvarna Kaushik,
Ravindera Kr. Verma, B. Krishna Prasad, Pragati Neekhra,
Pawan Shree Aggrawal, V. N. Raghupathy, Anitha Shenoy,
Rajiv Nanda, Manjit Singh, Tarjit Singh, Sanjay Rathi, Kamal H
642 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Mohan Gupta, C.D. Singh, Sakshi Kakkar for the appearing
parties.
The Judgment of the Court was delivered by
P. SATHASIVAM; CJI. 1. Our Constitution is highly valued
B 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
C 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
D 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.
E 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.
F
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
G 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
H sought for in all the writ petitions, we are not reproducing every
S}iAT~UGHAN.CHAUHAN v. UNION OF INDIA 643
•' f P. SATHASIVAM, CJI.]
pr~yer hereunder, however, while dealing with individual claims, A
we shall discuss factual details, the reliefs sought for and the
gr()unds urged in support of their claim at the appropriate place.
Besides, in the writ petition filed by PUDR, PUDR prayed for
v~rious directions in respect of procedure to be followed while
cQnsidering the mercy petitions, and in general for protection B
of rights of the death row convicts. We shall discuss discretely
tile aforesaid prayers in the ensuing paragraphs.
4. Heard Mr~ Ram Jethmalani, Mr. Anand Grover, Mr. R.
Basal'!t, Mr. Colin Gonsalves, learned senior counsel and Dr. C
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, Ms. Pragati Neekhra, Mr. Rajiv Nanda, Mr.
C.D. Singh, learned counsel and Mr. Manjit Singh, Additional D
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 E
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 F
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:- G
"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 oth~r Article except this one. It is the very soul of H
644 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 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 of the
8 democratic edifice raised by the Constitution. At the same time,
this Court, in AR Antulay vs. Union of India (1988) 2 SCC 602,
clarified and pronounced that any writ petition under Article 32
of the Constitution challenging the validity of the order or
judgment passed by this Court as nullity or otherwise incorrect
C cannot be entertained. In this light, let us examine the
maintainability of these petitions.
7. The aforesaid petitions, under Article 32 of the
Constitution, seek relief against alleged infringement of certain
fundamental rights on account of failure on the part of the
D executive to dispose of the mercy petitions filed under Article
72/161 of the Constitution within a reasonable time.
8. At the outset, the petitioners herein justly elucidated that
they are not challenging the final verdict of this Court wherein
E death sentence was imposed. In fact, they asserted in their
respective petitions that if the sentence had been executed then
and there, there would have been no grievance or cause of
action. However, it wasn't and the supervening events that
occurred after the final confirmation of the death sentence are
F the basis of filing these petitions.
9. It is a time-honored principle, as stipulated in R.D Shetty
VS. lntemational Airport Authority (1979) 3 sec 489, that no
matter, whether the violation of fundamental right arises out of
an executive action/inaction or action of the legislature, Article
G 32 can be utilized to enforce the fundamental rights in either
event. In the given case, the stand of the petitioners herein is
that exercise of the constitutional power vested in the executive
specified under Article 72/161 has violated the fundamental
rights of the petitioners herein. This Court, as in past,
H entertained the petitions of the given kind and issued
SHATRUGHAN CHAUHAN v. UNION OF INDIA 645
[P. SATHASIVAM, CJI.]
appropriate orders as in T. V. Vatheeswaran vs. State of Tamil A
Nadu (1983) 2 SCC 68, Sher Singh and Ors. vs. State of
Punjab (1983) 2 SCC 344 Triveniben vs. State of Gujarat
(1988) 4 sec 574 etc. Accordingly, we accede to the stand
of the petitioners and hold that the petitions are maintainable.
8
Nature of power guaranteed under Article 72/161 of the
Constitution
10. It is apposite to refer the relevant Articles which give
power to the President of India and the Governor to grant
pardons and to suspend, remit or commute sentences in certain c
cases. They are as follows:
"Article 72. Power of President to grant pardons, etc.
and to suspend, remit or commute sentences in
certain cases - (1) The President shall have the power
to grant pardons, reprieves, respites or remissions of D
punishment or to suspend, remit or commute the sentence
of any person convicted of any offence -
(a) in all cases where the punishment or sentence is
by a Court Martial; E
(b) in all cases where the punishment or sentence is
for an offence against any law relating to a matter
to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of F
death.
(2) Nothing in sub-clause (a) of clause (1) shall affect
the power conferred by law on any officer of the
Armed Forces of the Union to suspend, remit or
commute a sentence passed by a Court martial. G
(3) Nothing in sub-clause of clause (1) shall affect the
power to suspend, remit or commute a sentence of
death exercisable by the Governor of a State, under
any law for the time being in force."
H
646 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Article 161. Power of Governor to grant pardons, etc.
and to suspend, remit or commute sentences in
certain cases - The Governor of a State shall have the
power to grant pardons, reprieves, respites or remissions
of punishment or to suspend, remit or commute the
B sentence of any person convicted of any offence against
any law relating to a matter to which the executive power
of the State extends."
11. The memoir and scope of Article 72/161 of the
C Constitution was extensively considered in Kehar Singh vs.
Union of India & Anr., (1989) 1 SCC 204 in the following
words:
"7. The Constitution of India, in keeping with modern
constitutional practice, is a constitutive document,
D fundamental to the governance of the country, whereby,
according to accepted political theory, the people of India
have provided a constitutional polity consisting of certain
primary organs, institutions and functionaries to exercise
the powers provided in the Constitution. All power belongs
E to the people, and it is entrusted by them to specified
institutions and functionaries with the intention of working
out, maintaining and operating a constitutional order. The
Preambular statement of the Constitution begins with the
significant recital:
F We, the people of India, having solemnly resolved
to constitute India into a Sovereign Socialist
Secular Democratic Republic ... do hereby adopt,
enact and give to ourselves this Constitution.
G To any civilized society, there can be no attributes more
important than the life and personal liberty of its members.
That is evident from the paramount position given by the
courts to Article 21 of the Constitution. These twin
attributes enjoy a fundamental ascendancy over all other
H attributes of the political and social order, and
SHATRUGHAN CHAUHAN v. UNION OF INDIA 647
[P. SATHASIVAM, CJI.]
consequently, the Legislature, the Executive and the A
Judiciary are more sensitive to them than to the other
attributes of daily existence. The deprivation of personal
liberty and the threat of the deprivation of life by the action
.of the State is in most civilised societies regarded seriously
and, recourse, either under express constitutional provision B
or through legislative enactment is provided to the judicial
organ. But. the fallibility of human judgment being
undeniable even in the most trained mind. a mind
resourced by a harvest of experience. it has been
considered appropriate that in the matter of life and c
personal liberty. the protection should be extended by
entrusting power further to some high authority to scrutinise
the validity of the threatened denial of life or the threatened
or continued denial of personal liberty. The power so
entrusted is a power belonging to the people and reposed
0
in the highest dignitarv of the State. In England, the power
is regarded as the royal prerogative of pardon exercised
by the Sovereign, generally through the Home Secretary.
It is a power which is capable of exercise on a variety of
grounds, for reasons of State as well as the desire to
safeguard against judicial error. It is an act of grace issuing E
from the Sovereign. In the United States, however, after the
founding of the Republic, a pardon by the President has
been regarded not as a private act of grace but as a part
ofthe_constitutional scheme. In an opinion, remarkable for
its erudition and clarity, Mr Justice Holmes, speaking for F
the Court in W.I. Biddle v. Vuco Perovich 71 L Ed 1161)
enunciated this view, and it has since been affirmed in
other decisions. The power to pardon is a part of the
constitutional scheme. and we have no doubt. in our mind.
that it should be so treated also in the Indian Republic. It G
has been reposed· by the people through the Constitution
in the Head of the State. and enjoys high status. It is a
constitutional responsibility of great significance. to be
exercised when occasion arises in accordance with the
discretion contemplated by the context. It is not denied. and H
648 SUPREME COURT REPORTS [2014] 1 S.C.R.
A indeed it has been repeatedly affirmed in the course of
argument by learned Counsel. Shri Ram Jethmalani and
Shri Shanti Bhushan. appearing for the Petitioner that the
power to pardon rests on the advice tendered by the
Executive to the President. who subject to the provisions
B of Article 74(1) of the Constitution. must act in accordance
with such advice ...... " (Emphasis Supplied)
In that case, the Constitution Bench also considered
whether the President can, in exercise of the power under
Article 72 of the Constitution, scrutinize the evidence on record
C and come to a different conclusion than the one arrived at by
the Court and held as under:
"10. We are of the view that it is open to the President in
the exercise of the power vested in him by Article 72 of
D the Constitution to scrutinise the evidence on the record
of the criminal case and come to a different conclusion
from that recorded by the court in regard to the guilt of, and
sentence imposed on, the accused. In doing so, the
President does not amend or modify or supersede the
E judicial record. The judicial record remains intact, and
undisturbed. The President acts in a wholly different plane
from that in which the Court acted. He acts under a
ci:>nstitutional power, the nature of which is entirely different
from the judicial power and cannot be regarded as an
F extension of it. and this is so, notwithstanding that the
practical effect of the Presidential act is to remove the
stigma of guilt from the accused or to remit the sentence
imposed on him ....
The legal effect of a pardon is wholly different from a judicial
G supersession of the original sentence. It is the nature of
the power which is determinative ....
It is apparent that the power under Article 72 entitles the
President to examine the record of evidence of the criminal
H case and to determine for himself whether the case is one
SHATRUGHAN CHAUHAN v. UNION OF INDIA 649
[P. SATHASIVAM, CJI.]
deserving the grant of the relief falling within that power. A
We are of opinion that the 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 this
Court.
B
16 .... the power under Article 72 is of the widest
amplitude, can contemplate a myriad kinds and categories
of cases with facts and situations varying from case to
case, in which the merits and reasons of State may be
profoundly assisted by prevailing occasion and passing
time. and it is of great significance that the function itself C
enjoys high status in the constitutional scheme."
12. Both Articles 72 and 161 repose the power of the
people in the highest dignitaries, i.e., the President or the
Governor of a State, as the case may be, and there are no D
words of limitation indicated in either of the two Articles. The
President or the Governor, as the case may be, in exercise of
power under Article 72/161 respectively, may examine the
evidence afresh and this exercise of power is clearly
independent of the judiciary. This Court, in numerous instances, E
clarified that the executive is not sitting as a court of appeal
rather the power of President/Governor to grant remission of
sentence is an act of grace and humanity in appropriate cases,
i.e., distinct, absolute and unfettered in its nature.
13. In this context, the deliberations in Epuru Sudhakar F
& Anr. vs. Govt. of A.P. & Ors., (2006) 8 sec 161 are relevant
which are as under:
"16. The philosophy underlying the pardon power is that
"every civilized country recognizes, and has therefore G
provided for, the pardoning power to be exercised as an
act of grace and humanity in proper cases. Without such
a power of clemency, to be exercised by some
department or functionary of a government, a country
would be most imperfect and deficient in its political H
650 SUPREME COURT REPORTS [2014] 1 S.C.R.
A morality, and in that attribute of Deity whose judgments are
always tempered with mercy. [See 59 American
Jurisprudence 2d, page 5]
17. The rationale of the pardon power has been felicitously
enunciated by the celebrated Justice Holmes of the United
B States Supreme Court in the case of Biddle v. Perovich
in these words 71 L. Ed. 1161 at 1163: A pardon in our
days is not a private act of grace from an individual
happening to possess power. It is a part of the
constitutional scheme. When granted. it is the
c determination of the ultimate authority that the public
welfare will be better served by inflicting less than what the
judgment fixed." (emphasis added)
14. Article 72/161 of the Constitution entail remedy to all
0 the convicts and not limited to only death sentence cases and
must be understood accordingly. It contains the 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
E executed.
15. Shri Andhyarujina, learned senior counsel, who
assisted the Court as amicus commenced his submissions by
pointing out that the power reposed in the President under
Article 72 and the Governor under Article 161 of the Constitution
F is not a matter of grace or mercy, but is a constitutional duty of
great significance and the same has to be exercised with great
care and circumspection keeping in view the larger pubhc
interest. He referred to the judgment of the U.S. Supreme Court
in Biddle vs. Perovoch 274 US 480 as also the judgments of
G this Court in Kehar Singh (supra) and Epuru Sudhakar (supra).
16. In this context, in Kuljeet Singh vs. Lt. Govemor(1982)
1 SCC 417, this Court held:
"1. The question as regards the scope of the power of the
H President under Article 72 of the Constitution to commute
SHATRUGHAN CHAUHAN v. UNION OF INDIA 651
[P. SATHASIVAM, CJI.]
a sentence of death into a lesser sentence may have to A
await examination on an appropriate occasion. This clearly
is not that occasion because insofar as this case is
concerned, whatever be the guide-lines observed for the
exercise of the power conferred by Article 72, the only
sentence which can possibly be imposed upon the B
petitioner is that of death and no circumstances exist for
interference with that sentence. Therefore we see no
justification for saying that in refusing to commute the
sentence of death imposed upon the petitioner into a
lesser sentence, the President has in any manner c
transgressed his discretionary power under Article 72.
Undoubtedly, the President has the power in an
appropriate case to commute any sentence imposed by
a court into a lesser sentence and as said by Chief Justice
Taft in James Shewan and Sons v. U.S., the "executive
0
clemency exists to afford relief from undue harshness or
evident mistake in the operation or enforcement of the
criminal law" and that the administration of justice by the
courts is not necessarily or certainly considerate of
circumstances which may properly mitigate guilt. But the E
question as to whether the case is appropriate for the
exercise of the power conferred by Article 72 depends
upon the facts and circumstances of each particular case.
The necessity or the justification for exercising that power
has therefore to be judged from case to case. In fact, we
do not see what useful purpose will be achieved by the F
petitioner by ensuring the imposition of any severe,
judicially evolved constraints on the wholesome power of
the President to use it as the justice of a case may require.
After all, the power conferred by Article 72 can be used
only for the purpose of reducing the sentence, not for G
enhancing it. We need not, however, go into that question
elaborately because insofar as this case is concerned, we
are quite clear that not even the most liberal use of his
mercy jurisdiction could have persuaded the President to
interfere with the sentence of death imposed upon the H
652 SUPREME COURT REPORTS [2014] 1 S.C.R.
A petitioner, in view particularly of the considerations
mentioned by us in our judgment in Kuljeet Singh v. Union
of India. We may recall what we said in that judgment that
"the death of the Chopra children was caused by the
petitioner and his companion Billa after a savage planning
B which bears a professional stamp", that the "survival of an
orderly society demands the extinction of the life of persons
like Ranga and Billa who are a menace to social order and
security", and that "they are professional murderers and
deserve no sympathy even in terms of the evolving
C standards of decency of a mature society."
17. In concise, the power vested in the President under
Article 72 and the Governor under Article 161 of the Constitution
is a Constitutional duty. As a result, it is neither a matter of
grace nor a matter of privilege but is an important constitutional
D responsibility reposed by the people in the highest authority.
The power of pardon is essentially an executive action, which
needs to be exercised in the aid of justice and not in defiance
of it. Further, it is well settled that the power under Article 72/
161 of the Constitution of India is to be exercised on the aid
E and advice of the Council of Ministers.
Limited Judicial Review of the executive orders under
Article 721161
18. As already emphasized, the power of the executive to
F grant pardon under Article 72/161 is a Constitutional power and
this Court, on numerous occasions, has declined to frame
guidelines for the exercise of power under the said Articles for
two reasons. Firstly, it is a settled proposition that there is
always a presumption that the constitutional authority acts with
G application of mind as has been reiterated in Bikas Chatterjee
vs. Union of India {2004) 7 sec 634. Secondly, this Court, over
the span of years, unanimously took the view that considering
the nature of power enshrined in Article 72/161, it is
unnecessary to spell out specific guidelines. In this context, in
H Epuru Sudhakar (supra), this Court held thus:
SHATRUGHAN CHAUHAN v. UNION OF INDIA 653
[P. SATHASIVAM, CJI.]
"36. So far as desirability to indicate guidelines is A
concerned in Ashok Kumar case it was held as follows:
(SCC pp. 518-19, para 17)
"17. In Kehar Singh case on the question of laying
down guidelines for the exercise of power under B
Article 72 of the Constitution this Court observed
in para 16 as under: (SCC pp. 217-18, para 16)
'It seems to us that there is sufficient indication in the terms
of Article 72 and in the history of the power enshrined in
that provision as well as existing case-law, and specific C
guidelines need not be spelled out. Indeed, it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised guidelines, for we must remember
that the power under Article 72 is of the widest amplitude,
can contemplate a myriad kinds and categories of cases D
with facts and situations varying from case to case, in which
the merits and reasons of State may be profoundly
assisted by prevailing occasion·and passing time. And it
is of great significance that the function itself enjoys high
status in the constitutional scheme.' E
These observations do indicate that the Constitution Bench
which decided Kehar Singh case was of the view that the
language of Article 72 itself provided sufficient guidelines
for the exercise of power and having regard to its wide
amplitude and the status of the function to be discharged
F
thereunder, it was perhaps unnecessary to spell out
specific guidelines since such guidelines may not be able
to conceive of all myriad kinds and categories of cases
which may come up for the exercise of such power. No
doubt in Marv Ram case the Constitution Bench did G
recommend the framing of guidelines for the exercise of
power under Articles 72/161 of the Constitution. But that
was a mere recommendation and not a ratio decidendi
having a binding effect on the Constitution Bench which
decided Kehar Singh case. Therefore, the observation H
654 SUPRE:ME COURT REPORTS [2014] 1 S.C.R.
A made by the Constitution Bench in Kehar Singh case does
not upturn any ratio laid down in Maru Ram case. Nor has
the Bench in Kehar Singh case said anything with regard
to using the provisions of extant Remission Rules as
guidelines for the exercise of the clemency powers."
B
19. Nevertheless, this Court has been of the consistent
view that the executive orders under Article 72/161 should be
subject to limited judicial review based on the rationale that the
power under Article 72/161 is per se above judicial review but
C the manner of exercise of power is certainly subject to judicial
review. Accordingly, there is no dispute as to the settled legal
proposition that the power exercised under Article 72/161 could
be the subject matter of limited judicial review. [vide Kehar
Singh (supra); Ashok Kumar (supra); Swaran Singh vs. State
of U.P AIR 1998 SC 2026; Satpa/ and Anr. vs. State of
D Haryana and Ors. AIR 2000 SC 1702; and Bikas Chatterjee
(supra)]
20. Though the contours of power under Article 72/161
have not been defined, this Court, in Narayan Dutt vs. State
E of Punjab (2011) 4 SCC 353, para 24, has held that the
exercise of power is subject to challenge on the following
grounds:
(a) If the Governor had been found to have exercised
the power himself without being advised by the
F government;
(b) If the Governor transgressed his jurisdiction in
exercising the said power;
G (c) If the Governor had passed the order without
applying his mind;
(d) The order of the Governor was ma/a fide; or
(e) The order of the Governor was passed on some
H extraneous considerations.
SHATRUGHAN CHAUHAN v. UNION OF INDIA 655
[P. SATHASIVAM, CJI.]
These propositions are culmination of views settled by this A
Court that:
· (i) Power should not be exercised malafidely. (Vide
Maru Ram vs. Union of India, paras 62, 63 & 65).
(ii) No political considerations behind exercise of B
power. In this context, in Epuru Sudhakar (supra),
this Court held thus:
"34. The position, therefore, is undeniable that
judicial review of the order of the President or the c
Governor under Article 72 or Article 161, as the
case may be, is available and their orders can be
impugned on the following grounds:
(a) that the order has been passed without
0
application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous
or wholly irrelevant considerations; E
(d) that relevant materials have been kept out of
consideration;
(e) that the order suffers from arbitrariness.
35. Two important aspects were also highlighted by learned F
amicus curiae; one relating to the desirability of indicating
reasons in the order granting pardon/remission while the
other was an equally more important question relating to
power to withdraw the order of granting pardon/remission,
if subsequently, materials are placed to show that certain G
relevant materials were not considered or certain materials
of extensive value were kept out of consideration.
According to learned amicus curiae, reasons are to be
indicated, in the absence of which the exercise of judicial
review'Will be affected. H
656 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 37. In Kehar Singh case this Court held that: (SCC p. 216,
para 13)
"There is also no question involved in this case of
asking for the reasons for the President's order."
B · 38. The same obviously means that the affected party need
not be given the reasons. The question whether reasons
can or cannot be disclosed to the Court when the same is
challenged was not the subject-matter of consideration. In
any event, the absence of any obligation to convey the
C reasons does not mean that there should not be legitimate
or relevant reasons for passing the order."
21. A perusal of the above case-laws makes it clear that
the President/Governor is not bound to hear a petition for mercy
0 before taking a decision on the petition. The manner of exercise
of the power under the said articles is primarily a matter of
discretion and ordinarily the courts would not interfere with the
decision on merits. However, the courts retain the limited power
of judicial review to ensure that the constitutional authorities
E consider all the relevant materials before arriving at a
conclusion.
22. It is the claim of the petitioners herein that the impugned
executive orders of rejection of mercy petitions against 15
accused persons were passed without considering the
F supervening events which are crucial for deciding the same. The
legal basis for taking supervening circumstances into account
is that Article 21 inheres a right in every prisoner till his last
breath and this Court will protect that right even if the noose is
being tied on the condemned prisoner's neck. [vide Sher Singh
G (supra), Triveniben (supra), Vatheeswaran (supra), Jagdish
vs. State of Madhya Pradesh (2009) 9 SCC 495].
23. Certainly, delay is one of the permitted grounds for
limited judicial review as stipulated in the stare decisis.
H Henceforth, we shall scrutinize the claim of the petitioners herein
SHATRUGHAN CHAUHAN v. UNION OF INDIA 657
[P. SATHASIVAM, CJI.]
and find out the effect of supervening circumstances in the case A
on hand.
Supervening Circumstances
24. The petitioners herein have asserted the following
events as the supervening circumstances, for commutation of 8
death sentence to life imprisonment.
(i) · Delay
(ii) Insanity
c
(iii) Solitary Confinement
(iv) Judgments declared per incuriam
(v) Procedural Lapses D
25. All the petitioners have more or less asserted on the
aforesaid grounds which, in their opinion, the executive had
failed to take note of while rejecting the mercy petitions filed
by them. Let us discuss them distinctively and come to a
conclusion whether each of the circumstances exclusively or E
together warrants the commutation of death sentence into life
imprisonment.
(i) Delay
F
26. It is pre-requisite to comprehend the procedure
adopted under Article 72/161 for processing the mercy petition
so that we may be in a position to appreciate the aspect of
delay as one of the supervening circumstances.
27. The death row convicts invariably approached the G
Governor under Article 161 of the Constitution of India with a
mercy petition after this Court finally decided the matter. During
the pendency of the mercy petition, the execution of death
sentence was stayed. As per the procedure, once the mercy
petition is rejected by the Governor, the convict prefers mercy H
658 SUPREME COURT REPORTS [2014] 1 S.C.R.
A petition to the President. Thereafter, the mercy petition received
in President's office is forwarded to the Ministry of Home
Affairs. Normally, the mercy petition consists of one or two
pages giving grounds for mercy. To examine the mercy petition
so received and to arrive at a conclusion, the documents like
B copy of the judgments of the trial Court, High Court and the
Supreme Court are requested from the State Government. The
other documents required include details of the decision taken
by the Governor under Article 161 of the Constitution,
recommendations of the State Government in regard to grant
c of mercy petition, copy of the records of the case, nominal role
of the convict, health status of the prisoner and other related
documents. All these details are gathered from the State/Prison
authorities after the receipt of the mercy petition and, according
to the Union of India, it takes a lot of time and involve protracted
correspondence with prison authorities and State Government.
0
It is also the claim of the Union of India that these documents
are then extensively examined and in some sensitive cases,
various pros and cons are weighed to arrive at a decision.
Sometimes, person or at their instance some of their relatives,
file mercy petitions repeatedly which cause undue delay. In
E other words, according to the Union of India, the time taken in
examination of mercy petitions may depend upon the nature of
the case and the scope of inquiry to be made. It may also
depend upon the number of mercy petitions submitted by or on
behalf of the accused. It is the claim of the respondents that
F there cannot be a specific time limit for examination of mercy
petitions.
28. It is also the claim of the respondents that Article 72
envisages no limit as to time within which the mercy petition is
G to be disposed of by the President of India. Accordingly, it is
contended that since no time limit is prescribed for the
President under Article 72, the courts may not go into it or fix
any outer limit. It is also contended that the power of the
President under Article 72 is discretionary which cannot be
H taken away by any statutory provision and cannot be altered,
SHATRUGHAN CHAUHAN v. UNION OF INDIA 659
[P. SATHASIVAM, CJI.)
modified or interfered with, in any manner, whatsoever, by any A
statutory provision or authority. The powers conferred on the
President are special powers overriding all other laws, rules and
regulations in force. Delay by itself does not entail the person
under sentence of death to request for commutation of sentence
into life imprisonment. B
29. It is also pointed out that the decision taken by the
President under Article 72 is communicated to the State
GovernmenUUnion Territory concerned and to the prisoner
through State GovernmenUUnion Territory. It is also brought to C
our notice that as per List II Entry 4 of the Seventh Schedule to
the Constitution of India, "Prisons and persons detained therein"
is a State subject. Therefore, all steps for execution of capital
punishment including informing the convict and his/her family,
etc. are required to be taken care of by the concerned State
Governments/Union Territories in accordance with their jail D
manual/rules etc.
30. On the contrary, it is the plea of the petitioners that after
exhausting of the proceedings in the courts of law, the
aggrieved convict gets right to make a mercy petition before E
the Governor and the President of India highlighting his
grievance. If there is any undue, unreasonable and prolonged
delay in disposal of his mercy petition, the convict is entitled to
approach this Court by way of a writ petition under Article 32
of the Constitution. It is vehemently asserted that the execution F
of death penalty in the face of such an inordinate delay would
infringe fundamental right to life under Article 21 of the
Constitution, which would invite the exercise of the jurisdiction
by this Court.
31. The right to life is the most fundamental of all rights. G
The right to life, as guaranteed under Article 21 of the
Constitution of India, provides that no person shall be deprived
of his life and liberty except in accordance with the procedure
established by law. According to learned counsel for the Union
of India, death sentence is imposed on a person found guilty H
660 SUPREME COURT REPORTS [2014] 1 S.C.R.
A of an offence of heinous nature after adhering to the due
procedure established by law which is subject to appeal and
review. Therefore, delay in execution must not be a ground for
commutation of sentence of such a heinous crime. On the other
hand, the argument of learned counsel for the petitioners/death
B convicts is that human life is sacred and inviolable and every
effort should be made to protect it. Therefore, inasmuch as
Article 21 is available to all the persons including convicts and
continues till last breath if they establish and prove the
supervening circumstances, viz., undue delay in disposal of
c mercy petitions, undoubtedly, this Court, by virtue of power
under Article 32, can commute the death sentence into
imprisonment for life. As a matter of fact, it is the stand of the
petitioners that in a petition filed under Article 32, even without
a presidential order, if there is unexplained, long and inordinate
delay in execution of death sentence, the grievance of the
0
convict can be considered by this Court.
32. This Court is conscious of the fact, namely, while Article
21 is the paramount principle on which rights of the convicts
are based, it must be considered along with the rights of the
E victims or the deceased's family as also societal consideration
since these elements form part of the sentencing process as
well. The right of a victim to a fair investigation under Article
21 has been recognized in State of West Bengal vs.
Committee for Democratic Rights, West Bengal, (2010) 3
F sec 571, which is as under:
"68. Thus, having examined the rival contentions in the
context of the constitutional scheme, we conclude as
follows:
G (t) The fundamental rights, enshrined in Part Ill of the
Constitution, are inherent and cannot be extinguished by
any constitutional or statutory provision. Any law that
abrogates or abridges such rights would be violative of the
basic structure doctrine. The actual effect and impact of
H the law on the rights guaranteed under Part Ill has to be
SHATRUGHAN CHAUHAN v. UNION OF INDIA 661
[P. SATHASIVAM, CJI.]
taken into account in determining whether or not it destroys A
the basic structure.
(ii) Article 21 of the Constitution in its broad
perspective seeks to protect the persons of their lives and
personal liberties except according to the procedure B
established by law. The said article in its broad application
not only takes within its fold enforcement of the rights of
an accused but also the rights of the victim. The State has
a duty to enforce the human rights of a citizen providing
for fair and impartial investigation against any person C
accused of commission of a cognizable offence, which
may include its own officers. In certain situations even a
witness to the crime may seek for and shall be granted
protection by the State ... "
We do comprehend the critical facet involved in the arguments D
by both the sides and we will strive to strike a balance between
the rights of the accused as well as of the victim while deciding
the given case.
33. This is not the first time when the question of such a
nature is raised before this Court. In Ediga Anamma vs. State E
of A.P., 1974(4) SCC 443 Krishna Iyer, J. spoke of the
"brooding horror of haunting the prisoner in the condemned
cell for years». Chinnappa Reddy, J. in Vatheeswaran (supra)
said that prolonged delay in execution of a sentence of death
had a dehumanizing effect and this had the constitutional F
implication of depriving a person of his life in an unjust, unfair
and unreasonable way so as to offend the fundamental right
under Article 21 of the Constitution. Chinnappa Reddy, J.
quoted the Privy Council's observation in a case of such an
inordinate delay in execution, viz., "The anguish of alternating G
hope and despair the agony of uncertainty and the
consequences of such suffering on the mental, emotional and
physical integrity and health of the individual has to be seen."
Thereby, a Bench of two Judges of this Court held that the delay
of two years in execution of the sentence after the judgment of H
662 SUPREME COURT REPORTS [2014] 1 S.C.R.
A the trial court will entitle the condemned prisoner to plead for
commutation of sentence of death to imprisonment for life.
Subsequently, in Sher Singh (supra), which was a decision of
a Bench of three Judges, it was held that a condemned prisoner
has a right of fair procedure at all stages, trial, sentence and
B incarceration but delay alone is not good enough for
commutation and two years' rule could not be laid down in
cases of delay.
34. Owing to the conflict in the two decisions, the matter
was referred to a Constitution Bench of this Court for deciding
C the two questions of law viz., (i) whether the delay in execution
itself will be a ground for commutation of sentence and {ii)
whether two years' delay in execution will automatically entitle
the condemned prisoner for commutation of sentence. In Smt.
Triveniben vs. State of Gujarat (1988) 4 SCC 574, this Court
D held thus:
·2 ...... 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 that ensued
E 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
F 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 case cannot be said to lay down
G the correct law and therefore to that extent stands
overruled."
35. While giving full reasons which is reported in Smt.
Triveniben vs. State of Gujarat, (1989) 1 SCC 678 this Court,
in para 22, appreciated the aspect of delay in execution in the
H following words:-
SHATRUGHAN CHAUHAN v. UNION OF INDIA 663
[P. SATHASIVAM, CJI.]
"22. It was contended that the delay in execution of the A
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 B
challenge as violating Article 14 or Article 21 as has been
laid down by this Court in Naresh Shridhar Mirajkar v.
State of Maharashtra and also in AR. Antulay v. R.S.
Nayak the only jurisdiction which could be sought to be
exercised by a prisoner for infringement of his rights can c
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
0
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 E
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 F
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 G
sentence could be altered on that ground also."
36. Though learned counsel appearing for the Union of
India relied on certain observations of Shetty, J. who delivered
concurring judgment, particularly, para 76, holding that "the H
664 SUPREME COURT REPORTS (2014] 1 S.C.R.
A inordinate delay, may be a significant factor, but that by itself
cannot render the execution unconstitutional", after careful
reading of the majority judgment authored by Oza, J.,
particularly, para 2 of the order dated 11.10 .1988 and para 22
of the subsequent order dated 07 .02.1989, we reject the said
B stand taken by learned counsel for the Union of India.
37. In Vatheeswaran (supra), the dissenting opinion of the
two judges in the Privy Council case, relied upon by this Court,
was subsequently accepted as the correct law by the Privy
Council in Earl Pratt vs. AG for Jamaica (1994] 2 AC 1 - Privy
C Council, after 22 years. There is no doubt that judgments of the
Privy Council have certainly received the same respectful
consideration as the judgments of this Court. For clarity, we
reiterate that except the ratio relating to delay exceeding two
years in execution of sentence of death, all other propositions
D are acceptable, in fact, followed in subsequent decisions and
should be considered sufficient to entitle the person under
sentence of death to invoke Article 21 and plead for
commutation of the sentence.
E 38. In view of the above, we hold that undue long delay in
execution of sentence of death will entitle the condemned
prisoner to approach this Court under Article 32. However, this
Court will only examine the circumstances surrounding the delay
that has occurred and those that have ensued after sentence
F was finally confirmed by the judicial process. This Court cannot
reopen the conclusion already reached but may consider the
question of inordinate delay to decide whether the execution
of sentence should be carried out or should be altered into
imprisonment for life.
G 39. Keeping a convict in suspense while consideration of
his mercy petition by the President for many years is certainly
an agony for him/her. It creates adverse physical conditions and
psychological stresses on the convict under sentence of death.
Indisputably, this Court, while considering the rejection of the
H clemency petition by the President, under Article 32 read with
SHATRUGHAN CHAUHAN v. UNION OF INDIA 665
[P. SATHASIVAM, CJI.]
Article 21 of the Constitution, cannot excuse the agonizing delay A
caused to the convict only on the basis of the gravity of the
crime.
40. India has been a signatory to the Universal Declaration
of Human Rights, 1948 as well as to the United Nations
Covenant on Civil and Political Rights, 1966. Both these B
conventions contain provisions outlawing cruel and degrading
treatment and/or punishment. Pursuant to the judgment of this
Court in Vishaka vs. State of Rajasthan, (1997) 6 SCC 241,
international covenants to which India is a party are a part of
domestic law unless they are contrary to a specific law in force. C
It is this expression ("cruel and degrading treatment and/or
punishmenf) which has ignited the philosophy of Vatheeswaran
(supra) and the cases which follow it. It is in this light, the Indian
cases, particularly, the leading case of Triveniben (supra) has
been followed in the Commonwealth countries. It is useful to D
refer the following foreign judgments which followed the
proposition :
(i) Earl Pratt vs. AG for Jamaica [1994] 2 AC 1 -
Privy Council
E
(ii) Catholic Commission for Justice & Peace in
Zimbabwe vs. Attorney General, 1993 (4) S.A. 239
- Supreme Court of Zimbabwe
(iii) Soering vs. United Kingdom [App. No. 14038/88,
F
11 Eur. H.R. Rep. 439 (1989)] - European Court
of Human Rights
(iv) Attorney General vs. Susan Kigula, Constitutional
Appeal No. 3 of 2006 - Supreme Court of Uganda
G
(v) Herman Mejia and Nicholas Guevara vs. Attorney
General, A.O. 2000 Action No. 296 - Supreme
Court of Belize.
41. It is clear that after the completion of the judicial
process, if the convict files a mercy petition to the Governor/ H
666 SUPREME COURT REPORTS [2014) 1 S.C.R.
A President, it is incumbent on the authorities to dispose of the
same expeditiously. Though no time limit can be fixed for the
Governor and the President, it is the duty of the executive to
expedite the matter at every stage, viz., calling for the records,
orders and documents filed in the court, preparation of the note
B for approval of the Minister concerned, and the ultimate decision
of the constitutional authorities. This court, in Triveniben
(supra), further held that in doing so, if it is established that there
was prolonged delay in the execution of death sentence, it is
an important and relevant consideration for determining
c whether the sentence should be allowed to be executed or not.
42. Accordingly, if there is undue, unexplained amd
inordinate delay in execution due to pendency of mercy petitions
or the executive as well as the constitutional authorities have
failed to take note of/consider the relevant aspects, this Court
D is well within its powers under Article 32 to hear the grievance
of the convict and commute the death sentence into life
imprisonment on this ground alone however, only after
satisfying that the delay was not caused at the instance of the
accused himself. To this extent, the jurisprudence has
E developed in the light of the mandate given in our Constitution
as well as various Universal Declarations and directions issue~
by the United Nations.
43. The procedure prescribed by law, which deprives a
F person of his life and liberty must be just, fair and reasonable
and such procedure mandates humane conditions of detention
preventive or punitive. In this line, although the petitioners were
sentenced to death based on the procedure established by law,
the inexplicable delay on account of executive is unexcusable.
Since it is well established that Article 21 of the Constitution
G does not end with the pronouncement of sentence but extends
to the stage of execution of that sentence, as already asserted,
prolonged delay in execution of sentence of death has a
dehumanizing effect on the accused. Delay caused by
circumstances beyond the prisoners' control mandates
H commutation of death sentence. In fact, in Vatheeswaran
SHATRUGHAN CHAUHAN v. UNION OF INDIA 667
[P. SATHASIVAM, CJI.]
(supra), particularly, in para 10, it was elaborated where A
amongst other authorities, the minority view of Lords Scarman
and Brightman in the 1972 Privy Council case of Noel Noel
Riley vs. Attorney General, (1982) Crl.Law Review 679 by
quoting "sentence of death is one thing, sentence of death
followed by lengthy imprisonment prior to execution is B
another''. The appropriate relief in cases where the execution
of death sentence is delayed, the Court held, is to vacate the
sentence of death. In para 13, the Court made it clear that
Articles 14, 19 and 21 supplement one another and the right
which was spelled out from the Constitution was a substantive c
right of the convict and not merely a matter of procedure
established by law. This was the consequence of the judgment
in Maneka Gandhi vs. Union of India (1978) 1 SCC 248 which
made the content of Article 21 substantive as distinguished
from merely procedural.
44. Another argument advanced by learned ASG is that
even if the delay caused seems to be undue, the matter must
be referred back to the executive and a decision must not be
taken in the judicial side. Though we appreciate the contention
argued by the learned ASG, we are not inclined to accept the E
argument. The concept of supervening events emerged from
the jurisprudence set out in Vatheeswaran (supra) and
Triveniben (supra). The word 'judicial review' is not even
mentioned in these judgments and the death sentences have
been commuted purely on the basis of supervening events such
F
as delay. Under the ground of supervening events, when Article
21 is held to be violated, it is not a question of judicial review
but of protection of fundamental rights and courts give
substantial relief not merely procedural protection. The question
of violation of Article 21, its effects and the appropriate relief G
is the domain of this Court. There is no question of remanding
the matter for consideration because this Court is -the custodian
and enforcer of fundamental rights and the final interpreter of
the Constitution. Further, this Court is best equipped to
adjudicate the content of those rights and their requirements
in a particular fact situation. This Court has always granted relief H
668 SUPREME COURT REPORTS [2014] 1 S.C.R.
A for violation of fundamental rights and has never remanded the
matter. For example, in cases of preventive detention, violation
of free speech, externment, refusal of passport etc., the
impugned action is quashed, declared illegal and violative of
Article 21, but never remanded. It would not be appropriate to
B say at this point that this Court should not give relief for the
violation of Article 21.
45. At this juncture, it is pertinent to refer the records of
the disposal of mercy petitions compiled by Mr. Bikram Jeet
Batra and others, which are attached as annexures in almost
C all the petitions herein. At the outset, this-document reveals that
the mercy petitions were disposed of more expeditiously in
former days than in the present times. Mostly, until 1980, the
mercy petitions were decided in minimum of 15 days and in
maximum of 10-11 months. Thereafter, from 1980 to 1988, the
o time taken in disposal of mercy petitions was gradually
increased to an average of 4 years. It is exactly at this point of
time, the cases like Vatheeswaran (supra) and Triveniben
(supra) were decided which gave way for developing the
jurisprudence of commuting the death sentence based on
E undue delay. It is also pertinent to mention that this Court has
observed in these cases 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.
In Sher Singh (supra) their Lordships have also impressed the
F Government of India and all the State Governments for speedy
disposal of petitions filed under Articles 72 and 161 and issued
directions in the following manner:
"23. We must take this opportunity to impress upon the
Government of India and the State Governments that
G petitions filed under Articles 72 and 161 of the Constitution
or under Sections 432 and 433 of the Criminal Procedure
Code must be disposed of expeditiously. A self-imposed
rule should be followed by the executive authorities
rigorously, that every such petition shall be disposed
H of within a period of three months from the date on
SHATRUGHAN CHAUHAN v. UNION OF INDIA 669
[P. SATHASIVAM, CJI.]
which it is received. Long and interminable delays in the A
disposal of these petitions are a serious hurdle in the
dispensation of justice and indeed, such delays tend to
'I
shake the confidence of the people in the very system of
justice.
46. Obviously, the mercy petitions disposed of from 1989 B
to 1997 witnessed the impact of the observations in the
disposal of mercy petitions. Since the average time taken for
deciding the mercy petitions during this period was brought
down to an average of 5 months from 4 years thereby paying
due regard to the observations made in the decisions of this C
Court, but unfortunately, now the history seems to be repeating
itself as now the delay of maximum 12 years is seen in
disposing of the mercy petitions under Article 72/161 of the
Constitution.
D
47. We sincerely hope and believe that the mercy petitions
under Article 72/161 can be disposed of at a much faster pace
than what is adopted now, if the· due procedure prescribed by
law is followed in verbatim. Although, no time frame can be set
for the President for disposal of the mercy petition but we can E
certainly request the concerned Ministry to follow its own rules
rigorously which can reduce, to a large extent, the delay caused.
48. Though guidelines to define the contours of the power
under Article 72/161 cannot be laid down, however, the Union
Government, considering the nature of the power, set out F
certain criteria in the form of circular as under for deciding the
mercy petitions.
Personality of the accused (such as age, sex or
mental deficiency) or circumstances of the case G
(such as provocation or similar justification);
Cases in which the appellate Court expressed
doubt as to the reliability of evidence but has
nevertheless decided on conviction;
H
670 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Cases where it is alleged that fresh evidence is
obtainable mainly with a view to see whether fresh
enquiry is justified;
Where the High Court on appeal reversed acquittal
or on an appeal enhanced the sentence;
B
Is there any difference of opinion in the Bench of
High Court Judges necessitating reference to a
larger Bench;
c Consideration of evidence in fixation of
responsibility in gang murder case;
Long delays in investigation and trial etc.
49. These guidelines and the scope of the power set out
D above make it clear that it is an extraordinary power not limited
by judicial determination of the case and is not to be exercised
lightly or as a matter of course. We also suggest, in view of the
jurisprudential development with regard to delay in execution,
another criteria may be added so as to require consideration
E of the delay that may have occurred in disposal of a mercy
petition. In this way, the constitutional authorities are made
aware of the delay caused at their end which aspect has to be
considered while arriving at a decision in the mercy petition.
The obligation to do so can also be read from the fact that, as
F observed by the Constitution Bench in Triveniben (supra),
delays in the judicial process are accounted for in the final
verdict of the Court terminating the judicial exercise.
50. Another vital aspect, without mention of which the
present discussion will not be complete, is that, as aforesaid,
G Article 21 is the paramount principle on which rights of the
convict are based, this must be considered along with the rights
of the victims or the deceased's family as also societal
consideration since these elements form part of the sentencing
process as well. It is the stand of the respondents that the
H commutation of sentence of death based on delay alone will
SHATRUGHAN CHAUHAN v. UNION OF INDIA 671
[P. SATHASIVAM, CJI.]
be against the. victim's interest. A
51. It is true that the question of sentence always poses a
complex problem, which requires a working compromise
between the competing views based on reformative, deterrent
and retributive theories of punishments. As a consequence, a 8
large number of factors fall for consideration in determining the
appropriate sentence. The object of punishment is lucidly
elaborated in Ram Narain vs. State of Uttar Pradesh (1973)
2 sec 86 in the following words:-
"8 .... the broad object of punishment of an accused found C
guilty in progressive civilized societies is to impress on the
guilty party that commission of crimes does not pay and
that it is both against his individual interest and also
against the larger interest of the society to which he
belongs. The sentence to be appropriate should, therefore, D
be neither too harsh nor too lenient.. .."
52. The object of punishment has been succinctly stated
in Halsbury's Laws of England, (4th Edition: Vol. II: para 482)
thus:
E
"The aims of punishment are now considered to be
retribution, justice, deterrence, reformation and protection
and modern sentencing policy reflects a combination of
several or all of these aims. The retributive element is
intended to show public revulsion to the offence and to F
punish the offender for his wrong conduct. The concept of
justice as an aim of punishment means both that the
punishment should fit the offence and also that like
offences should receive similar punishments. An
increasingly important aspect of punishment is deterrence G
and sentences are aimed at deterring not only the actual
offender from further offences but also potential offenders
from breaking the law. The importance of reformation of
the offender is shown by the growing emphasis laid upon
it by much modern legislation, but judicial opinion towards H
672 SUPREME COURT REPORTS [2014] 1 S.C.R.
A this particular aim is varied and rehabilitation will not usually
be accorded precedence over deterrence. The main aim
of punishment in judicial thought. however. is still the
protection of society and the other objects frequently
receive only secondary eonsideration when sentences are
B being decided."
53. All these aspects were emphatically considered by this
Court while pronouncing the final verdict against the petitioners
herein thereby upholding the sentence of death imposed by the
C High Court. Nevertheless, the same accused (petitioners
herein) are before us now under Article 32 petition seeking
commutation of sentence on the basis of undue delay caused
in execution of their levied death sentence, which amounts to
torture and henceforth violative of Article 21 of the Constitution.
We must clearly see the distinction under both circumstances.
0
Under the former scenario, the petitioners herein were the
persons who were accused of the offence wherein the
sentence of death was imposed but in later scenario, the
petitioners herein approached this Court as a victim of violation
of guaranteed fundamental rights under the Constitution
E seeking commutation of sentence. This distinction must be
considered and appreciated.
54. As already asserted, this Court has no jurisdiction
under Article 32 to reopen the case on merits. Therefore, in the
F light of the aforesaid elaborate discussion, we are of the cogent
view that undue, inordinate and unreasonable delay in execution
of death sentence does certainly attribute to torture which
indeed is in violation of Article 21 and thereby entails as the
ground for commutation of sentence. However, the nature of
G delay i.e. whether it is undue or unreasonable must be
appreciated based on the facts of individual cases and no
exhaustive guidelines can be framed in this regard.
Rationality of Distinguishing between Indian Penal Code,
1860 And Terrorist and Disruptive Activities (Prevention)
H Act Offences for Sentencing Purpose •
SHATRUGHAN CHAUHAN v. UNION OF INDIA 673
[P. SATHASIVAM, CJI.]
55. In Writ Petition No. 34 of 2013 - the accused were A
mulcted with TADA charges which ultimately ended in death
sentence. Mr. Ram Jethmalani, learned senior counsel for the
petitioners in that writ petition argued against the ratio laid down
in Devender Pal Singh Bhullar vs. State (NCT) of Delhi (2013)
6 sec 195 which holds that when the accused are convicted B
under TADA, there is no question of showing any sympathy or
considering supervening circumstances for commutation of
sentence, and emphasized the need for reconsideration of the
verdict. According to Mr. Ram Jethmalani, Devender Pal Singh
Bhullar (supra) is per incuriam and is not a binding decision c
for other cases. He also prayed that inasmuch as the ratio laid
down in Devender Pal Singh Bhullar (supra) is erroneous, this
Court, being a larger Bench, must overrule the same.
56. He pointed out that delay in execution of sentence of
death after it has become final at the end of the judicial process D
is wholly unconstitutional inasmuch it constitutes torture,
deprivation of liberty and detention in custody not authorized
by law within the meaning of Article 21 of the Constitution. He
further pointed out that this involuntary detention of the convict
is an action not authorized by any penal provision including E
Section 302 IPC or any other law including TADA. On the other
hand, Mr. Luthra, learned ASG heavily relying on the reasonings
in Devender Pal Singh Bhullar (supra) submitted that
inasmuch as the crime involved is a serious and heinous and
the accused were charged under TADA, there cannot be any F
sympathy or leniency even on the ground of delay in disposal
of mercy petition. According to him, considering the gravity of
the crime, death sentence is warranted and Devender Pal
Singh Bhullar (supra) has correctly arrived at a conclusion and
rejected the claim for commutation on the ground of delay. G
57. From the analysis of the arguments of both the counsel,
we are of the view tbat only delay which could not have been
avoided even if the matter was proceeded with a sense of
urgency or was caused in essential preparations for execution
of sentence may be the relevant factors under such petitions H
674 SUPREME COURT REPORTS [2014] 1 S.C.R.
A in Article 32. Considerations such as the gravity of the crime,
extraordinary cruelty involved therein or some horrible
consequences for society caused by the offence are not relevant
after the Constitution Bench ruled in Bachan Singh vs. State
of Punjab (1980) 2 sec 684 that the sentence of death can
B only be imposed in the rarest of rare cases. Meaning, of course,
all death sentences imposed are impliedly the most heinous and
barbaric and rarest of its kind. The legal effect of the
extraordinary depravity of the offence exhausts itself when court
sentences the person to death for that offence. Law does not
c prescribe an additional period of imprisonment in addition to
the sentence of death for any such exceptional depravity
involved in the offence.
58. As rightly pointed out by Mr. Ram Jethmalani, it is open
to the legislature in its wisdom to decide by enacting an
D appropriate law that a certain fixed period of imprisonment in
addition to the sentence of death can be imposed in some well
defined cases but the result cannot be accomplished by a
judicial decision alone. The unconstitutionality of this additional
incarceration is itself inexorable and must not be treated as
E dispensable through a judicial decision.
59. Now, in this background, let us consider the ratio laid
down in Devender Pal Singh Bhullar (supra).
60. The brief facts of that case were: Devender Pal Singh
F Bhullar, who was convicted by the Designated Court at Delhi
for various offences under TADA, IPC and was found guilty and
sentenced to death. The appeal as well as the review filed by
him was dismissed by this Court. Soon after the dismissal of
the review petition, Bhullar submitted a mercy petition dated
G 14.01.2003 to the President of India under Article 72 of the
Constitution and prayed for commutation of his sentence.
Various other associations including Delhi Sikh Gurdwara
Management Committee sent letters in connection with
commutation of the death sentence awarded to him. During the
H pendency of the petition filed under Article 72, he also filed
SHATRUGHAN CHAUHAN v. UNION OF INDIA 675
[P. SATHASIVAM, CJI.]
Curative Petition (Criminal) No. 5 of 2013 which was also A
dismissed by this Court on 12.03.2013. After prolonged
correspondence and based on the advice of the Home Minister,
the President rejected his mercy petition which was informed
vide letter dated 13.06.2011 sent by the Deputy Secretary
(Home) to the Jail Authorities. After rejection of his petition by B
the President, Bhullar filed a writ petition, under Article 32 of
the Constitution, in this regard praying for quashing the
communication dated 13.06.2011. While issuing notice in Writ
Petition (Criminal) Diary No. 16039/2011, this Court directed
the respondents to clarify as to why the petitions made by the c
petitioner had not been disposed of for the last 8 years. In
compliance with the courts direction, the Deputy Secretary
(Home) filed an affidavit giving reasons for the delay. This
Court, after adverting to all the earlier decisions, instructions
regarding procedure to be observed for dealing with the D
petitions for mercy, accepted that there was a delay of 8 years.
Even after accepting that long delay may be one of the grounds
for commutation of sentence of death into life imprisonment, this
Court dismissed his writ petition on the ground that the same
cannot be invoked in cases where a person is convicted for an E
offence under TADA or similar statutes. This Court also held
that such cases stand on an altogether different footing and
cannot be compared with murders committed due to personal
animosity or over property and personal disputes. It is also
relevant to point out that while arriving at such conclusion, the
Bench heavily relied on opinion expressed by Shetty, J. in Smt. F
Triveniben (supra). Though the Bench adverted to paras 73,
74, 75 and 76 of Triveniben (supra), the Court very much
emphasized para 76 which reads as under:-
"76 . ... The court while examining the matter, for the G
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 H
676 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 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
B 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..." (emphasis supplied)
c 61. On going through the judgment of Oza, J. on his behalf
and for M.M. Dutt, K.N. Singh and L.M. Sharma, JJ., we are of
the view that the above quoted statement of Shetty, J. is not a
majority view and at the most this is a view expressed by him
alone. In this regard, at the cost of repetition it is relevant to
D refer once again the operative portion of the order dated
11.10.1988 in Triveniben (supra) which is as under:-
"2. We are of the opinion that:
Undue long delay in execution of the sentence of death will
E
entitle the condemned person to approach this Court under
Article 32 but this Court will only examine the nature of
delay caused and circumstances that ensued after
sentence was finally confirmed by the judicial process and
will have no jurisdiction to re-open the conclusions reached
F 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.
G No fixed period of delay could be held to make the
sentence of death inexecutable and to this extent the
decision in Vatheeswaran case cannot be said to lay down
the correct law and therefore to that extent stands
overruled."
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 677
[P. SATHASIVAM, CJI.]
62. The same view was once again reiterated by all the A
Judges and the very same reasonings have been reiterated in
Para 23 of the order dated 07.02.1989. In such circumstances
and also in view of the categorical opinion of Oza, J. in para
22 of the judgment in Triveniben (supra) that "it will not be open
to this Court in exercise of jurisdiction under Article 32 to go B
behind or to examine the final verdict ... the nature of the
offence, circumstances in which the offence was committed
will have to be taken as found by the competent court .. .", it
cannot be held, as urged, on behalf of the Union of India that
the majority opinion in Triveniben (supra) is to the effect that c
delay is only one of the circumstances that may be considered
along with "other circumstances of the case" to determine as
to whether the death sentence should be commuted to one of
life imprisonment. We are, therefore, of the view that the opinion
rendered by Shetty, J. as quoted in para 76 of the judgment in 0
Triveniben (supra) is a minority view and not a view consistent
with what has been contended to be the majority opinion. We
reiterate that as per the majority view, if there is undue long
delay in execution of sentence of death, the condemned
prisoner is entitled to approach this Court under Article 32 and E
the court is bound to examine the nature of delay caused and
circumstances that ensued after sentence was finally confirmed
by the judicial process and to take a decision whether
execution of sentence should be carried out or should be altered
into imprisonment for life. It is, however, true that the majority
of the Judges have not approved the fixed period of two years F
enunciated in Vatheeswaran (supra) and only to that extent
overruled the same.
63. Incidentally, it is relevant to point out Mahendra Nath
Das vs. Union of India and Ors. (2013) 6 SCC 253, wherein G
the very same bench, taking note of the fact that there was a
delay of 12 years in the disposal of the mercy petition and also
considering the fact that the appellants therein were prosecuted
and convicted under Section 302 IPC held the rejection of the
appellants' mercy petition as illegal and consequently, the H
678 SUPREME COURT REPORTS [2014] 1 S.C.R.
A sentence of death awarded to them by the trial Court which was
confirmed by the High Court, commuted into life imprisonment.
64. In the light of the same, we are of the view that the ratio
laid down in Devender Pal Singh Bhullar (supra) is per
B incuriam. There is no dispute that in the same decision this
Court has accepted the ratio enunciated in Triveniben (supra)
(Constitution Bench) and also noted some other judgments
following the ratio laid down in those cases that unexplained
long delay may be one of the grounds for commutation of
C sentence of death into life imprisonment. There is no good
reason to disqualify all TADA cases as a class from relief on
account of delay in execution of death sentence. Each case
requires consideration on its own facts.
65. It is useful to refer a Constitution Bench decision of this
D Court in Mithu vs. State of Punjab (1983) 2 SCC.277, wherein
this Court held Section 303 of the IPC as unconstitutional and
declared it void. The question before the Constitution Bench
was whether Section 303 of IPC infringes the guarantee
contained in Article 21 of the Constitution, which provides that
E "no person shall be deprived of his life or personal liberty except
according to the procedure established by law". Chandrachud,
J. the then Hon'ble the Chief Justice, speaking for himself, Fazal
Ali, Tulzapurkar and Varadarajan, JJ., struck down Section 303
IPC as unconstitutional and declared it void. The Bench also
F held that all the cases of murder will now fall under Section 302
IPC and there shall be no mandatory sentence of death for the
offence of murder. The reasons given by this Court for striking
down this aforesaid section will come in aid for this case.
Section 303 IPC was as under:
G "303. Punishment for murder by life convict.-
Whoever, being under sentence of imprisonment for life,
commits murder, shall be punished with death."
66. Before striking down Section 303 IPC, this Court made
H the following conclusion:
SHATRUGHAN CHAUHAN v. UNION OF INDIA 679
[P. SATHASIVAM, CJI.]
"3 ... The reason, or at least one of the reasons, why the A
discretion of the court to impose a lesser sentence was
taken away and the sentence of death was made
mandatory in cases which are covered by Section 303
seems to have been that if, even the sentence of life
imprisonment was not sufficient to act as a deterrent and B
the convict was hardened enough to commit a murder while
serving that sentence, the only punishment which he
deserved was death. The severity of this legislative
judgment accorded with the deterrent and retributive
theories of punishment which then held sway. The c
reformative theory of punishment attracted the attention of
criminologists later in the day...
5 ... The sum and substance of the argument is that the
provision contained in Section 303 is wholly unreasonable
and arbitrary and thereby, it violates Article 21 of the D
Constitution which affords the guarantee that no person
shall be deprived of his life or personal liberty except in
accordance with the procedure established by law. Since
the procedure by which Section 303 authorises the
deprivation of life is unfair and unjust, the Section is E
unconstitutional. Having examined this argument with care
and concern, we are of the opinion that it must be·
accepted and Section 303 of the Penal Code struck
down."
F
67. After quoting Maneka Gandhi (supra), Sunil Batra vs.
Delhi Administration (1978) 4 SCC 494 and Bachan Singh
(supra), this Court opined:
"19 ... To prescribe a mandatory sentence of death for the
second of such offences for the reason that the offender G
was under the sentence of life imprisonment for the first
of su~h offences is arbitrary beyond the bounds of all
reason. Assuming that Section 235(2) of the Criminal
Procedure Code were applicable to the case and the court
was under an obligation to hear the accused on the H
680 SUPREME COURT REPORTS [2014) 1 S.C.R.
A question of sentence, it would have to put some such
question to the accused:
"You were sentenced to life imprisonment for the offence
of forgery. You have committed a murder while you were
under that sentence of life imprisonment. Why should you
B
not be sentenced to death"
The question carries its own refutation. It highlights how
arbitrary and irrational it is to provide for a mandatory
sentence of death in such circumstances ... •
c
23. On a consideration of the various circumstances which
we have mentioned in this judgment, we are of the opinion
that Section 303 of the Penal Code violates the guarantee
of equality contained in Article 14 as also the right
D conferred by Article 21 of the Constitution that no person
shall be deprived of his life or personal liberty except
according to procedure established by law. The section
was originally conceived to discourage assaults by life
convicts on the prison staff, but the legislature chose
language which far exceeded its intention. The Section
E
also assumes that life convicts are a dangerous breed of
humanity as a class. That assumption is not supported by
any scientific data. As observed by the Royal Commission
in its Report on "Capital Punishment"
F "There is a popular belief that prisoners serving a life
sentence after conviction of murder form a specially
troublesome and dangerous class. That is not so. Most find
themselves in prison because they have yielded to
temptation under the pressure of a combination of
G circumstances unlikely to recur."
In Dilip Kumar Shanna v. State of M.P. this Court was not
concerned with the question of the vires of Section 303,
but Sarkaria, J., in his concurring judgment, described the
vast sweep of that Section by saying that "the section is
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 681
[P. SATHASIVAM, CJI.]
Draconian in severity, relentless and inexorable in A
operation" [SCC para 22, p. 567: SCC (Cri} p. 92]. We
strike down Section 303 of the Penal Code as
unconstitutional and declare it void. It is needless to add
that all cases.of murder will now fall under Section 302 of
the Penal Code and there shall be no mandatory sentence B
of death for the offence of murder."
68. Chinnappa Reddy, J., concurring with the above view,
held thus:
"25. Judged in the light shed by Maneka Gandhi and C
Bachan Singh, it is impossible to uphold Section 303 as
valid. Section 303 excludes judicial discretion. The
scales of justice are removed from the hands of the
Judge so soon as he pronounces the accused guilty
of the offence. So final, so irrevocable and so D
irrestitutable [sic irresuscitablel is the sentence of
death that no law which provides for it without
involvement of the judicial mind can be said to be
fair. just and reasonable. Such a law must
necessarily be stigmatised as arbitrary and E
oppressive. Section 303 is such a law and it must go
the way of all bad laws. I agree with my Lord Chief
Justice that Section 303. Indian Penal Code, must be
struck down as unconstitutional."
F
69. It is clear that since Section 303 IPC excludes judicial
discretion, the Constitution Bench has concluded that such a
law must necessarily be stigmatized as arbitrary and
oppressive. It is further clear that no one should be deprived of
equality contained in Article 14 as also the right conferred by
Article 21 of the Constitution regarding his life or personal G
liberty except according to the procedure established by law.
70. Taking guidance from the above principles and in the
light of the ratio enunciated in Triveniben (supra), we are of
the view that unexplained delay is one of the grounds for H
682 SUPREME COURT REPORTS [2014}_ 1 S.C.R.
A commutation of sentence of death into life imprisonment and
the said supervening circumstance is applicable to all types of
cases including the offences under TADA. The only aspect the
courts have to satisfy is that the delay must be unreasonable
and unexplained or inordinate at the hands of the executive. The
B argument of Mr. Luthra, learned ASG that a distinction can be
drawn between IPC and non-IPC offences since the nature of
the offence is a relevant factor is liable to be rejected at the
outset. In view of our conclusion, we are unable to share the
views expressed in Devender Pal Singh Bhullar (supra).
C (ii) Insanity/Mental Illness/Schizophrenia
71. In this batch of cases, two convict prisoners prayed for
commutation of death sentence into sentence of life
imprisonment on the ground that the unconscionably long delay
D in deciding the mercy petition has caused the onset of chronic
psychotic illness, and in view of this the execution of death
sentence will be inhuman and against the well-established
canons of human rights.
E 72. The principal question raised in those petitions is
whether because of the aforementioned supervening events
after the verdict of this Court confirming the death sentence, the
infliction of the most extreme penalty in the circumstances of
the case, violates the fundamental rights under Article 21. The
F petitioners have made it clear that they are not challenging the
death sentence imposed by this Court. However, as on date,
they are suffering from insanity/mental illness. In this background,
let us consider whether the petitioners have made out a case
for commutation to life sentence on the ground of insanity.
G 73. India is a member of the United Nations and has
ratified the International Covenant on Civil and Political Rights
(ICCPR}. A large number of United Nations international
documents prohibit the execution of death sentence on an
insane person. Clause 3(e} of the Resolution 2000165 dated
H 27.04.2000 of the U.N. Commission on Human Rights titled
SHATRUGHAN CHAUHAN v. UNION OF INDIA 683
[P. SATHASIVAM, CJI.]
"The Question of Death Penalty'' urges "a// States that still A
maintain the death penalty ... not to impose the death penalty
on a person suffering from any form of mental disorder or to
execute any such person". It further elaborates:
"3. Urges all States that still maintain the death penalty:
B
(a) To comply fully with their obligations under the
International Covenant on Civil and Political Rights and the
Convention on the Rights of the Child, notably not to
impose the death penalty for any but the most serious
crimes and only pursuant to a final judgement rendered by C
an independent and impartial competent court, not to
impose it for crimes committed by persons below 18 years
of age, to exclude pregnant women from capital
punishment and to ensure the right to a fair trial and the
right to seek pardon or commutation of sentence; D
(b) To ensure that the notion of"most serious crimes" does
not go beyond intentional crimes with lethal or extremely
grave consequences and that the death penalty is not
imposed for non-violent financial crimes or for non-violent
E
religious practice or expression of conscience;
(c) Not to enter any new reservations under article 6 of the
International Covenant on Civil and Political Rights which
may be contrary to the object and the purpose of the
Covenant and to withdraw any such existing reservations, F
given that article 6 pf the Covenant enshrines the minimum
rules for the protection of the right to life and the generally
accepted standards in this area;
(d) To observe the Safeguards guaranteeing protection of G
the rights of those facing the death penalty and to comply
fully with their international obligations, in particular with
those under the Vienna Convention on Consular Relations;
(e) Not to impose the death penalty on a person suffering
H
684 SUPREME COURT REPORTS [2014] 1 S.C.R.
A from any form of mental disorder or to execute any such
person;
(f) Not to execute any person as long as any
related legal procedure, at the international or at the
national level, is pending;
B
4. Calls upon all States that still maintain the death penalty:
(a) Progressively to restrict the number of offences for
which the death penalty may be imposed;
c (b) To establish a moratorium on executions, with a view
to completely abolishing the death penalty;
(c) To make available to the public information with regard
to the imposition of the death penalty;
D
5. Requests States that have received a request for
extradition on a capital charge to reserve explicitly the right
to refuse extradition in the absence of effective assurances
from relevant authorities of the requesting State that capital
E punishment will not be carried out;
6. Requests the Secretary-General to continue to submit
to the Commission on Human Rights, at its fifty-seventh
session, in consultation with Governments, specialized
agencies and intergovernmental and non-governmental
F organizations, a yearly supplement on changes in law and
practice concerning the death penalty worldwide to his .
quinquennial report on capital punishment and
implementation of the Safeguards guaranteeing protection
of the rights of those facing the death penalty;
G
7. Decides to continue consideration of the matter at its
fifty-seventh session under the same agenda item.
66th meeting
26 April 2000"
H
. SHATRUGHAN CHAUHAN v. UNION OF INDIA 685
[P. SATHASIVAM, CJI.]
74. Similarly, Clause 89 of the Report of the Special A
Rapporteur on Extra-Judicial Summary or Arbitrary
Executions published on 24.12.1996 by the UN Commission
on Human Rights under the caption "Restrictions on the use
of death penalty" states that "the imposition of capital
punishment on mentally retarded or insane persons, pregnant B
women and recent mothers is prohibited". further, Clause 116
thereof under the caption "Capital punishment" urges that
"Governments that enforce such legislation with respect to
minors and the mentally ill are particularly called upon to
bring their domestic criminal laws into conformity with c
international legal standards".
75. United Nations General Assembly in its Sixty-second
session, adopted a Resolution on 18.12.2007, which speaks
about moratorium on the use of the death penalty. The following
decisions are relevant: D
"1. Expresses its deep concern about the continued
application of the death penalty;
2. Calls upon all States that still maintain the death penalty: E
(a) To respect international standards that provide
safeguards guaranteeing protection of the rights of those
facing the death penalty, in particular the minimum
standards, as set out in the annex to Economic and Social
Council resolution 1984/50 of 25 May 1984; F
*** *** ***
76th plenary meeting
18 December 2007"
G
76. The following passage from the Commentary on the
Laws of England by William Blackstone is relevant for our
consideration:
" ... In criminal cases therefore idiots and lunatics are not H
686 SUPREME COURT REPORTS [2014] 1 S.C.R.
A chargeable for their own acts, if committed when under
these incapacities: no, not even for treason itself. Also, if
a man in his sound memory commits a capital offense, and
before arraignment for it, he becomes mad, he ought not
to be arraigned for it; because he is not able to plead to it
B with that advice and caution that he ought. And if, after he
has pleaded, the prisoner becomes mad, he shall not be
tried; for how can he make his defense? If, after he be tried
and found guilty, he loses his senses· before judgment,
judgment shall not be pronounced; and if, after judgment,
c he becomes of nonsane memory, execution shall be
stayed: for peradventure, says the humanity of the English
law, had the prisoner been of sound memory, he might
have alleged something in stay of judgment or execution."
77. India too has similar line of law and rules in the
D respective State Jail Manuals. Paras 386 and 387 of the U.P.
Jail Manual applicable to the State of Uttarakhand are relevant
for our purpose and are quoted hereinbelow:
"386. Condemned convicts developing insanity - When
E a convict under sentence of death develops insanity
after conviction, the Superintendent shall stay the
execution of the sentence of death and inform the
District Magistrate, who shall submit immediately a report,
through the Sessions Judge, for the orders of the State
F Government.
387. Postponement of execution in -certain cases - The
execution of a convict under sentence of death shall not
be carried out on the date fixed if he is physically unfit to
receive the punishment, but shall not be postponed unless
G the illness is both serious and acute (i.e. not chronic). A
report giving full particulars of the illness necessitating
postponement of execution should at once be made to the
Secretary to the State Government, Judicial (A)
Department for the orders of the Government."
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 687
[P. SATHASIVAM, CJ!.]
Similar provisions are available in Prison Manuals of other A
States in India. ·
78. The above materials, particularly, the directions of the
United Nations International Conventions, of which India is a
party, clearly show that insanity/mental illness/schizophrenia is
B
a crucial supervening circumstance, which should be
considered by this Court in deciding whether in the facts and
circumstances of the case death sentence could be commuted
to life imprisonment. To put it clear, "insanity" is a relevant
supervening factor for consideration by this Court.
c
79. In addition, after it is established ttiat the death convict
is insane and it is duly certified by the competent doctor,
undoubtedly, Article 21 protects him and such person cannot
be executed without further clarification from the competent
authority about his mental problems. It is also highlighted by D
relying on commentaries from various countries that civilized
countries have not executed death penalty on an insane person.
Learned counsel also relied on United Nations Resolution
against execution of death sentence, debate of the General
Assembly, the decisions of International Court of Justice, E
Treaties, European Conventions, 8th amendment in the United
States which prohibits execution of death sentence on an
insane person. In view of the well established laws both at
national as well as international sphere, we are inclined to
consider insanity as one of the supervening circumstances that F
warrants for commutation of death sentence to life
imprisonment.
(iii) Solitary Confinement
80. Another supervening circumstance, which most of the G
petitioners appealed in their petitions is the ground of solitary
confinement. The grievance of some of the petitioners herein
is that they were confined in solitary confinement from the date
of imposition of death sentence by the Sessions Court which
is contrary to the provisions of the Indian Penal Code, 1860, H
688 SUPREME COURT REPORTS [2014] 1 S.C.R.
A the Code of Criminal Procedure, 1973, Prisons Act and Articles
14, 19 and 21 of the Constitution and it is certainly a form of
torture. However, the respective States, in their counter
affidavits and in oral submissions, have out rightly denied
having kept any of the petitioners herein in solitary confinement
B in violation of existing laws. It was further submitted that they
were kept separately from the other prisoners for safety
purposes. In other words, they were kept in statutory
segregation and not per se in solitary confinement.
81. Similar line of arguments were advanced in Sunil Batra
C vs. Delhi Administration and Ors. etc. (1978) 4 SCC 494,
wherein this Court held as under:-
"87. The propositions of law canvassed in Batra's case turn
on what is solitary confinement as a punishment and what
D is non-punitive custodial isolation of a prisoner awaiting
execution. And secondly, if what is inflicted is, in effect,
'solitary', does Section 30(2) of the Act authorise it, and,
if it does, is such a rigorous regimen constitutional. In one
sense, these questions are pushed to the background,
E because Batra's submission is that he is not 'under
sentence of death' within the scope of Section 30 until the
Supreme Court has affirmed and Presidential mercy has
dried up by a final 'nay'. Batra has been sentenced to
death by the Sessions Court. The sentence has since been
confirmed, but the appeal for Presidential commutation are
F
ordinarily precedent to the hangmen's lethal move, and
remain to be gone through. His contention is that solitary
confinement is a separate substantive punishment of
maddening severity prescribed by Section 73 of the Indian
Penal Code which can be imposed only by the Court; and
G so tormenting is this sentence that even the socially less
sensitive Penal Code of 1860 has interposed, in its cruel
tenderness, intervals, maxima and like softening features
in both Sections 73 and 74. Such being the penal situation,
it is argued that the incarceratory insulation inflicted by the
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 689
[P. SATHASIVAM, CJI.]
Prison Superintendent on the petitioner is virtual solitary A
confinement unauthorised by the Penal Code and,
therefore, illegal. Admittedly, no solitary confinement has
been awarded to Batra. So, if he is de facto so confined
it is illegal. Nor does a sentence of death under Section
53, l.P.C. carry with it a supplementary secret clause of B
solitary confinement. What warrant then exists for solitary
confinement on Batra? None. The answer offered is that
he is not under solitary confinement. He is under 'statutory
confinement' under the authority of Section 30(2) of the
Prisons Act read with Section 366(2) Cr.P.C. It will be a c
stultification of judicial power if under guise of using
Section 30(2) of the Prisons Act, the Superintendent inflicts
what is substantially solitary confinement which is a
species of punishment exclusively within the jurisdiction of
the criminal court. We hold, without hesitation, that Sunil 0
Batra shall not be solitarily confined. Can he be segregated
from view and voice and visits and comingling, by resort
to Section 30(2) of the Prisons Act and reach the same
result ? To give the answer we must examine the essentials
of solitary confinement to distinguish it from being 'confined E
in a cell apart from all other prisoners'.
88. If solitary confinement is a revolt against society's
humane essence, there is no reason to permit the same
punishment to be smuggled into the prison system by
naming it differently. Law is not a formal label, nor F
logomachy but a working technique of justice. The Penal
Code and the Criminal Procedure Code regard punitive
solitude too harsh and the Legis(ature cannot be intended
to permit preventive solitary confinement, released even
from the restrictions of Section 73 and 74 l.P.C., Section G
29 of the Prisons Act and the restrictive Prison Rules. It
would be extraordinary that a far worse solitary
confinement, masked as safe custody, sans maximum,
sans intermission, sans judicial oversight or natural justice,
would be sanctioned. Commonsense quarrels with such
nonsense. H
690 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 89. For a fuller comprehension of the legal provisions and
their construction we may have to quote the relevant
sections and thereafter make a laboratory dissection
thereof to get an understanding of the components which
make up the legislative sanction for semi-solitary detention
B of Shri Batra. Section 30 of the Prisons Act rules :
30. (1) Every prisoner under sentence of death
shall, immediately on his arrival in the prison after
sentence, be searched by, or by order of, the
Deputy Superintendent, and all articles shall be
c taken from him which the Deputy Superintendent
deems it dangerous or inexpedient to leave in his
possession.
(2) Every such prisoner, shall be confined in a cell apart
D from all other prisoners, and shall be placed by day and
by night under charge of a guard.
This falls in Chapter V relating to discipline of prisoners
and has to be read in that context. Any separate
confinement contemplated in Section 30(2) has this
E
disciplinary limitation as we will presently see. If we pull to
pieces the whole provision it becomes clear that Section
30 can be applied only to a prisoner "under sentence of
death". Section 30(2) which speaks of "such" prisoners
necessarily relates to prisoners under sentence of death.
F We have to discover when we can designate a prisoner
as one under sentence of death.
90. The next attempt is to discern the meaning of
confinement "in a cell apart from all other prisoners". The
G purpose is to maintain discipline and discipline is to avoid
disorder, fight and other untoward incidents, if
apprehended.
91. Confinement inside a prison does not necessarily
import cellular isolation. Segregation of one person all
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 691
[P. SATH,A.SIVAM, CJI.]
alone in a single cell is solitary confinement. That is a A
separate punishment which the Court alone can impose.
It would be a subversion of this statutory provision (Section
73 and 74 1.P.C.) to impart a meaning to Section 30(2) of
the Prisons Act whereby a disciplinary variant of solitary
confinement can be clamped down on a prisoner, although 8
no court has awarded such a punishment, by a mere
construction, which clothes an executive officer, who
happens to be the governor of the jail, with harsh judicial
powers to be exercised by punitive restrictions and
unaccountable to anyone, the power being discretionary C
and disciplinary.
92. Indeed, in a jail, cells are ordinarily occupied by more
than one inmate and community life inside dormitories and
cells is common. Therefore, "to be confined in a cell" does
not compel us to the conclusion that the confinement should D
be in a solitary cell.
93. "Apart from all other prisoners" used in Section 30(2)
is also a phrase of flexible import. 'Apart' has the sense
of 'To one side, aside, ... apart from each other, separately E
in action or function' (Shorter Oxford English Dictionary).
Segregation into an isolated cell is not warranted by the
word. All that it connotes is that in a cell where there are a
plurality 6f inmates the death sentencees will have to be
kept separated from the rest in the same cell but not too F
close to the others. And this separation can be effectively
achieved because the condemned prisoner will be placed
under the charge of a guard by day and by night. The guard
will thus stand in between the several inmates and the
condemned prisoner. Such a meaning preserves the
disciplinary purpose and avoids punitive harshness. G
Viewed functionally, the separation is authorised, not
obligated. That is to say, if discipline nee~~ it the authority
shall be entitled to and the prisoner s~ll be liable to
separate keeping within the same cell as explained above.
"Shall" means, in this disciplinary context, "shall be liable H
692 SUPREME COURT REPORTS [2014) 1 S.C.R.
A to". If the condemned prisoner is docile and needs the
attention of fellow prisoners nothing forbids the jailer from
giving him that facility.
96. Solitary confinement has the severest sting and is
awardable only by Court. To island a human being, to keep
B him incommunicado from his fellows is the story of the
Andamans under the British, of Napoleon in St. Helena I
The anguish of aloneness has already been dealt with by
me and I hold that Section 30(2) provides no alibi for any
form of solitary or separated cellular tenancy for the death
c sentence, save to the extent indicated.
111. In my judgment Section 30(2) does not validate the
State's treatment of Batra. To argue that it is not solitary
confinement since visitors are allowed, doctors and
D officials come and a guard stands by is not to take it out
of the category.•
82. It was, therefore, held that the solitary confinement,
even if mollified and modified marginally, is not sanctioned by
Section 30 of the Prisons Act for prisoners 'under sentence of
E death'. The crucial holding under Section 30(2) is that a person
is not 'under sentence of death', even if the Sessions Court has
sentenced him to death subject to confirmation by the High
Court. He is not 'under sentence of death' even if the High
Court imposes, by confirmation or fresh appellate infliction,
F death penalty, so long as an appeal to the Supreme Court is
likely to be or has been moved or is pending. Even if this Court
has awarded capital sentence, it was held that Section 30 does
not cover him so long as his petition for mercy to the Governor
and/or to the President permitted by the Constih•tion, has not
G been disposed of. Of course, once rejected by the Governor
and the President, and on further application, there is no stay
of execution by the authorities, the person is under sentence
of death. During that interregnum, he attracts the custodial
segregation specified in Section 30(2), subject to the
H ameliorative meaning assigned to the provision. To be 'under -
SHATRUGHAN CHAUHAN v. UNION OF INDIA 693
[P. SATHASIVAM, CJI.]
~
sentence of death' means 'to be under a finally executable death A
sentence;.
83. Even in Triveniben (supra), this Court observed that
keeping a prisoner in solitary confinement is contrary to the
ruling in Suni/ Batra (supra) and would amount to inflicting 8
"additional and separate" punishment not authorized by law. It
is completely unfortunate that despite enduring pronouncement
on judicial side, the actual implementation of the provisions is
far from reality. We take this occasion to urge to the jail
authorities to comprehend and implement the actual intent of C
the verdict in Sunil Batra (supra).
84. As far as this batch of cases is concerned, we are not
inclined to interfere on this ground.
(iv) Judgments Declared Per lncuriam D
85. Many counsels, while adverting to the cause of the
petitioners, complained that either the trial court or the High
Court relied on/adverted to certain earlier decisions which were
either doubted or held per incuriam such as Machhi Singh vs.
State of Punjab (1983) 3 SCC 470, Ravji alias Ramchandra E
vs. State of Rajasthan (1996) 2 SCC 175, Sushi/ Murmu vs.
State of Jharkhand (2004) 2 SCC 338, Dhananjoy Chatterjee
vs. State of W.B. (1994) 2 SCC 220, State of U.P. vs.
Dharmendra Singh (1999) 8 SCC 325 and Surja Ram vs. .
State of Rajasthan (1996) 6 SCC 271. Therefore, it is the claim F
of the petitioners herein that this aspect constitutes a
supervening circumstance that warrants for commutation of
sentence of death to life imprisonment.
86. It is the stand of few of the petitioners herein that the G
guidelines issued in Machhi Singh (supra) are contrary to the
law laid down in Bachan Singh (supra). Therefore, in three
decisions, viz., Swamy Shraddananda (2) vs. State of
Kamataka (2008) 13 SCC 767, Sangeet and Another vs.
State of Haryana (2013) 2 SCC 452 and Gurvai/ Singh vs. H
694 SUPREME COURT REPORTS [2014] 1 S.C.R.
A State of Punjab (2013) 2 SCC 713 the verdict pronounced by
Machhi Singh (supra) is held to be per incuriam.
87. In the light of the above stand, we carefully scrutinized
those decisions. Even in Machhi Singh (supra), paragraphs
B 33 to 37 included certain aspects, viz., I. manner of commission
of murder; II. motive for commission of murder; Ill. anti-social
or socially abhorrent nature of the crime; IV. magnitude of crime
and V. personality of victim of murder. Ultimately, in paragraph
38, this Court referred to the guidelines prescribed in Bachan
Singh (supra). In other words, Machhi Singh (supra), after
C noting the propositions emerged from Bachan Singh (supra),
considered the individual appeals and disposed of the same.
In this regard, it is useful to refer a three-Judge Bench decision
of this Court in Swamy Shraddananda (2) (supra). The Bench
considered the principles enunciated in Machhi Singh (supra),
D Bachan Singh (supra) and after analyzing the subsequent
decisions, came to the conclusion in paragraph 48:
"48 ... It is noted above that Bachan Singh laid down the
principle of the rarest of rare cases. Machhi Singh, for
E practical application crystallised the principle into five
definite categories of cases of murder and in doing so also
considerably enlarged the scope for imposing death
penalty. But the unfortunate reality is that in later decisions
neither the rarest of rare cases principle nor the Machhi
F Singh categories were followed uniformly and consistently."
88. Except the above observations, the three-Judge Bench
has nowhere discarded Machhi Singh (supra). In other words,
we are of the view that the three-Judge Bench considered and
clarified the principles/guidelines in Machhi Singh (supra). It
G is also relied by the majority in Triveniben (supra). As regards
other cases, in view of the factual position, they must be read
in .consonance with the three-Judge Bench and the Constitution
Bench.
H 89. As pointed out by learned ASG for the Union of India,
SHATRUGHAN CHAUHAN v. UNION OF INDIA 695
[P. SATHASIVAM, CJI.]
no decision mentioned above was found to be erroneous or A
wrongly decided. However, due to various factual situations,
certain decisions were clarified and not applied to the facts of
the peculiar case. In these circumstances, we are of the view
that there is no need to give importance to the arguments
relating to per incuriam. B
(v) Procedural Lapses
90. The last supervening circumstance averred by the
petitioners herein is the ground of procedural lapses. It is the
claim of the petitioners herein that the prescribed procedure for C
disposal of mercy petitions was not duly followed in these cases
and the lapse in following the prescribed rules have caused
serious injustice to both the accused (the petitioners herein)
and their family members.
D
91. Ministry of Home Affairs, Government of India has
detailed procedure regarding handling of petitions for mercy in
death sentence cases. As per the said procedure, Rule I
enables a convict under sentence of death to submit a petition
for mercy within seven days after and exclusive of the day on E
which the Superintendent of Jail informs him of the dismissal
by the Supreme Court of his appeal or of his application for
special leave to appeal to the Supreme Court. Rule II prescribes
procedure for submission of petitions. As per this Rule, such
petitions shall be addressed to, in the case of States, to the
Governor of the State at the first instance and thereafter to the F
President of India and in the case of Union Territories directly
to the President of India. As soon as mercy petition is received,
the execution of sentence shall in all cases be postponed
pending receipt of orders on the same. Rule Ill states that the
petition shall in the first instance, in the case of States, be sent G
to the State concerned for consideration and orders of the
Governor. If after consideration it is rejected, it shall be
forwarded to the Secretary to the Government of India, Ministry
of Home Affairs. If it is decided to commute the sentence of
death, the petition addressed to the President of India shall be H
696 SUPREME COURT REPORTS [2014) 1 S.C.R.
A withheld and intimation to that effect shall be sent to the
petitioner. Rule V states that in all cases in which a petition for
mercy from a convict under sentence of death is to be
forwarded to the Secretary to the Government of India, Ministry
of Home Affairs, the Lt. Governor/Chief Commissioner/
B Administrator or the Government of the State concerned, as the
case may be, .shall forward such petition, as expeditiously as
possible, along with the records of the case and his or its
observations in respect of any of the grounds urged in the
petition. Rule VI mandates that upon receipt of the orders of
C the President, an acknowledgement shall be sent to the
Secretary to the Government of India, Ministry of Home Affairs,
immediately in the manner prescribed. In the case of Assam
and Andaman and Nicobar Islands, all orders will be
communicated by telegraph and the receipt thereof shall be
acknowledged by telegraph. In the case of other States and
0 Union Territories, if the petition is rejected, the orders will be
communicated by express letter and receipt thereof shall be
acknowledged by express letter. Orders commuting the death
sentence will be communicated by express letters, in the case
of Delhi and by telegraph in all other cases and receipt thereof
E shall be acknowledged by express letter or telegraph, as the
case may be. Rule Vlll(a) enables the convict that if there is a
change of circumstance or if any new material is available in
respect of rejection of his earlier mercy petition, he is free to
make fresh application to the President for reconsideration of
F the earlier order. ·
92. Specific instructions relating to the duties of
Superintendents of Jail in connection with the petitions for
mercy for or on behalf of the convicts under ~ntence of death
G have been issued. Rule I mandates that immediately on receipt
of warrant of execution, consequent on the ~nJirmation by the
High Court of the sentence of death, the Jail Superintendent
shall inform the convict concerned that if he wishes to appeal
to the Supreme Court or to make an application for special
H leave to appeal to the Supreme Court under any of the relevant
SHATRUGHAN CHAUHAN v. UNION OF INDIA 697
[P. SATHASIVAM, CJI.]
provisions of the Constitution of India, he/she should do so A
within the period prescribed in the Supreme Court Rules. Rule
II makes it clear that, on receipt of the intimation of the dismissal
by the Supreme Court of the appeal or the application for
special leave to appeal filed by or on behalf of the convict, in
case the convict concerned has made no previous petition for B
mercy, the Jail Superintendent shall forthwith inform him 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. Rule
Ill says that if the convict submits a petition within the period of
seven days prescribed by Rule II, it should be addressed, in c
the case of States, to the Governor of the State at the first
instance and, thereafter, to the President of India and in the
case of Union Territories, to the President of India. The
Superintendent of Jail shall forthwith dispatch it to the Secretary
to the State Government in. the Department concerned or the 0
Lt Governor/Chief Commissioner/Administrator, as the case
may be, together with a covering letter reporting the date fixed
for execution and shall certify that the execution has been stayed
pending receipt of orders of the Government on the petition.
Rule IV mandates that if the convict submits petition after the E
period prescribed by Rule II, the Superintendent of Jail shall,
at once, forward it to the State Government and at the same
time telegraphed the substance of it requesting orders whether
execution should be postponed stating that pending reply
sentence will not be carried out.
F
93. The above Rules make it clear that at every stage the
matter has to be expedited and there cannot be any delay at
the instance of the officers, particularly, the Superintendent of
Jail, in view of the language used therein as "at once".
G
94. Apart from the above Rules regarding presentation of
mercy petitions and disposal thereof, necessary instructions
have been issued for preparation of note to be approved by
the Home Minister and for passing appropriate orders by the
President of India.
H
698 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 95. Extracts from Prison Manuals of various States
applicable for the disposal of mercy petitions have been placed
before us. Every State has separate Prison Manual which
speaks about detailed procedure, receipt placing required
materials for approval of the Home Minister and the President
B for taking decision expeditiously. Rules also provide steps to
be taken by the Superintendent of Jail after the receipt of mercy
petition and subsequent action after disposal of the same by
the President of India. Almost all the Rules prescribe how the
death convicts are to be treated till final decision is taken by
c the President of India.
96. The elaborate procedure clearly shows that even death
convicts have to be treated fairly in the light of Article 21 of the
Constitution of India. Nevertheless, it is the claim of all the
petitioners herein that all these rules were not adhered to strictly
D and that is the primary reason for the inordinate delay in disposal
of mercy petitions. For illustration, on receipt of mercy petition,
the Department concerned has to call for all the records/
materials connected with the conviction. Calling for piece-meal
records instead of all the materials connected with the
E conviction should be deprecated. When the matter is placed
before the President, it is incumbent upon the part of the Home
Ministry to place all the materials such as judgment of the Trial
Court, High Court and the final Court, viz., Supreme Court as
well as any other relevant material connected with the conviction
F at once and not call for the documents in piece meal.
97. At the time of considering individual cases, we will test
whether those Rules have been strictly complied with or not on
individual basis.
G Analysis on Case-to-Case Basis
Writ Petition (Crl.) Nos. 55 and 132 of 2013
98. Mr. Shatrughan Chauhan and Mr. Mahinder Chauhan,
H family members of death convicts - Suresh and Ramji have
SHATRUGHAN CHAUHAN v. UNION OF INDIA 699
[P. SATHASIVAM, CJI.]
filed Writ Petition {Crl.) No. 55 of 2013. Subsequent to the filing A
of the Writ Petition {Crl.) No. 55 of 2013 by the family members,
the death convicts themselves, viz., Suresh and Ramji, aged
60 years and 45 years respectively, belonging to the State of
Uttar Pradesh, filed Writ Petition {Crl.) No. 132 of the 2013.
B
99. On 19.12.1997, the petitioners were convicted under
Section 302 IPC for the murder of five family members of the
first petitioner's brother for which they were awarded death
sentence. On 23.02.2000, the Allahabad High Court confirmed
their conviction and death sentence and, subsequently this Court C
dismissed their Criminal Appeal being No. 821 of 2000, vide
judgment dated 02.03.2001.
100. On 09.03.2001 and 29.04.2001, the first and the
second petitioners herein filed mercy petitions respectively
addressed to the Governor/President of India. On 28.03.2001, D
Respondent No. 2-State of Uttar Pradesh wrote to the prison
authorities seeking information inter alia on the conduct of the
first petitioner in prison. On 05.04.2001, the prison authorities
informed Respondent No. 2 about his good conduct.
E
101. On 18.04.2001, this Court dismissed the Review
Petition {Crl.) being No. 416 of 2001 which was filed on
30.03.2001.
· 102. On 22.04.2001, Respondent No. 1-Union of Jndia
wrote to Respondent No. 2 asking for the record of the case F
and for information on whether mercy petition has been rejected
by the Governor. Meanwhile, other mercy petitions were
received by Respondent No. 1. There is no reference in the
affidavit of Respondent No. 1 that the same were forwarded to
Respondent No. 2 for consideration. · G
103. On 04.05.2001, Respondent No. 2 wrote to the
Government Advocate, District Varanasi asking for a copy of
the trial court judgment, which information is available from the
counter affidavit filed by Respondent No. 2. On 23.05.2001, H
700 SUPREME COURT REPORTS [2014) 1 S.C.R.
A Respondent No. 2 sent a reminder to the Government
Advocate, District Varanasi to send a copy of the trial court
judgment. On 04.09.2001, the District Magistrate, Varanasi
informed Respondent No. 2 that it is not possible to get a copy
of the trial court judgment as all the papers are lying in the
B Supreme Court.
104. On 13.12.2001, without obtaining a copy of the trial
court judgment, Respondent No. 2 advised the Governor to
reject the mercy petition. On 18.12.2001, the Governor rejected
the mercy petition after taking nine months' time. On
C 22.01.2002, Respondent No. 2 informed Respondent No. 1 that
the Governor has rejected the petitioners' mercy petition. It is
the grievance of the petitioners that neither the petitioners nor
their family members were informed about the rejection.
D 105. On 28.03.2002, Respondent No. 1 wrote to
Respondent No. 2 seeking copy of the trial court judgment. On
12.06.2002, the judgment of the trial court was furnished by
Respondent No. 2 to Respondent No. 1.
106. Rule V of the Mercy Petition Rules which exclusively
E provides that the mercy petition should be sent along with the
judgments and related documents immediately, states as
follows:
"In all cases in which a petition for mercy from a convict
F under sentence of death is to be forwarded to the
Secretary to the Government of India, Ministry of Home
Affairs, the Lieut Governor/Chief Commissioner/
Administrator or the Government of the State concerned
as the case may be shall forward such petition as
G expeditiously as possible along with the records of the
case and his or its observations in respect of any of the
grounds urged in the petition".
107. There is no explanation for the delay of about five
months in sending the papers to Respondent No. 1. On
H 07.12.2002, Respondent No. 2 wrote to Respondent No. 1
SHATRUGHAN CHAUHAN v. UNION OF INDIA 701
[P. SATHASIVAM, CJI.]
seeking information about the status of the petitioners' mercy A
. petition. Twelve reminders were sent between 17.01.2003 and
14.12.2005.
108. On 27.07.2003, Respondent No. 4-Superintendent of
Jail, in accordance with the provisions of the U.P. Jail Manual,
8
wrote to Respondent No. 2 seeking information about the
petitioners' pending mercy petitions. Thereafter, twenty-seven
reminders were sent by the prison authorities between
29.09.2003 and 29.05.2006.
109. On 08.04.2004, Respondent No. 1 advised the c
President to reject the mercy petition. On 21.07.2004, the
President returned the petitioners' file (along with the files of
ten other death-row convicts) to Respondent No. 1 for the
advice of the new Home Minister. On 20.06.2005, Respondent
No. 1 advised the President to reject the mercy petitions. On 0
24.12.2010, Respondent No. 1 recalled the files from the
President. On 13.01.2011, the said files were received from
the President. On 19.02.2011, Respondent No. 1 advised the
President to reject the mercy petition .
. 110. On 14.11.2011, Respondent No. 2 wrote to E
Respondent No. 1 seeking information about the status of the
petitioners' mercy petitions.
111. On 29.10.2012, the President returned the file for the
advice of the new Home Minister. On 16.01.2013, Respondent
No. 1 advised the President to reject the mercy petition. On F
08.02.2013, the President rejected the mercy petitions.
112. On 05.04.2013, the petitioners heard the news
reports that their mercy petitions have been rejected by the
President of India. It is asserted that they have not received any G
written confirmation till this date.
113. On 06.04.2013, the petitioners authorized their family
members, viz. Mr. Shatrughan Chauhan and Mr. Mahinder
Chauhan, to file an urgent writ petition in this Court, which was
ultimately numbered as Writ Petition (Crl.) No., 55 of 2013. By H
702 SUPREME COURT REPORTS [2014] 1 S.C.R.
A order dated 06.04.2013, this Court stayed the execution of the
petitioners. Only on 20.06.2013, the prison authorities informed
vide letter dated 18.06.2013 that the petitioners' mercy petitions
have been rejected by the President.
8 114. All the above details have been culled out from the
writ petitions filed by the petitioners and the counter affidavit
filed on behalf of the Union of India as well as the State of Uttar
Pradesh. The following are the details relating to disposal of
mercy petitions by the Governor and the President:
c Custody suffered till date 6.10.1996 - 17 years 2
17.12.2013 months
Custody suffered under 19.12.1997 - 16 years
sentence of death 17.12.2013
D
Total delay since filing of 27.04.2001 - 12 years 2
mercy petition till prisoner 20.06.2013 months
informed of rejection by the
President
E
Delay in disposal of mercy
petition by Governor
First petitioner 9.3.2001 - 10 months
28.01.2002
F
Second petitioner 27.04.2001 - 9 months
28.01.2002
Delay in disposal of mercy 28.01.2002 - 11 years
petition by the President 08.02.2013
G
Delay in communicating 8.02.2013 -
rejection by the President 20.06.2013 4 months
115. There is no dispute that these petitioners killed five
H members of their family - two adults and three children over
SHATRUGHAN CHAUHAN v. UNION OF INDIA 703
[P. SATHASIVAM, CJI.]
property dispute. It is a heinous crime and they were awarded A
death sentence which was also confirmed by this Court.
However, the details furnished in the form of affidavits by the
petitioners, counter affidavit filed by Respondent Nos. 1 and 2
as well as the records produced by Mr. Luthra, learned
Additional Solicitor General, clearly show that there was a delay B
of twelve years in disposal of their mercy petitions. To put it
clear, the Governor of Uttar Pradesh took around ten months
to reject the mercy petitions (09.03.2001 to 28.01.2002) and
the Preside.nt rejected the petitions with a delay of eleven years
(28.01.2002 to 08.02.2013). We also verified the summary c
prepared by the Ministry of Home Affairs for the President and
the connected papers placed by learned ASG wherein no
discussion with regard to the same was attributed to.
116. On going through various details, stages and
considerations and in the light of various principles discussed D
above and also of the fact that this Court has accepted in a
series of decisions that undue and unexplained delay in
execution is one of the supervening circumstances, we hold that
in the absence of proper, plausible and acceptable reasons for
the delay, the delay of twelve years in considering the mercy E
petitions is a relevant ground for the commutation of death
sentence into life imprisonment. We are also satisfied that the
summary prepared by the Ministry of Home Affairs for the
President makes no mention of twelve years' delay much less
any plausible reason. Accordingly, both the death convicts - . F
Suresh and Ramji have made out a case for commutation of
their death sentence into life imprisonment.
Writ Petition (Crl.) No. 34 of 2013
117. This writ petition is filed by Shamik Narain which G
relates to four death convicts, viz., Bilavendran, Simon,
Gnanprakasam and Madiah aged 55 years, 50 years, 60 years
and 64 years respectively.
118. The case emanates from the State of Karnataka. H
Accordina to the oetitioners. the accused oersons are in
704 SUPREME COURT REPORTS [2014] 1 S.C.R.
A custody for nearly 19 years and 7 months. All the persons were
charged under IPC as well as under the provisions of the TADA.
By judgment dated 29.09.2001, the Designated TADA Court,
Mysore convicted the accused persons for the offence
punishable under TADA as well as IPC and the Arms Act and
B sentenced them inter alia to undergo rigorous imprisonment for
life.
119. All the accused persons preferred Criminal Appeal
being Nos. 149-150 of 2002 before this Court which were
admitted by this Court. The State of Karnataka also filed a
C Criminal Appeal being No. 34 of 2003 against the judgment
dated 29.09.2001 praying for enhancement of sentence from
life imprisonment to death sentence. On 09.01.2003, this Court
refused to accept the claim of the State of -Karnataka and
dismissed its appeal on the ground of limitation. However, this
D Court, by judgment and order dated 29.01.2004, suo motu
enhanced the sentence of the accused persons from life
imprisonment to death. In the same order, this Court confirmed
the conviction and sentence imposed by the TADA Court and
dismissed the appeals preferred by the accused.
E
120. On 12.02.2004, separate mercy petitions were filed
by the petitioners and the Superintendent, Central Jail,
Belgaum forwarded the same to Respondent No. 1.
F 121. On 29.04.2004, the review petitions filed by the
petitioners were also dismissed by this Court.
122. On 29.07.2004, the Governor rejected the mercy
petitions and, according to the petitioners, they were never
informed about the same.
G
123. On 07.08.2004, Respondent No. 2 forwarded the
mercy petitions to Respondent No. 1 which were received on
16.08.2004. Here again, there is no explanation for the delay
of six months from 12.02.2004, when the mercy petitions were
H first forwarded to Respondent No. 1.
SHATRUGHAN CHAUHAN v. UNION OF INDIA 705
[P. SATHASIVAM, CJI.]
124. On 19.08.2004, Respondent No. 1 requested A
Respondent No. 2 for a copy of the trial court judgment. Here
again, the trial court judgment and other relevant documents
should have been sent to Respondent No. 1 along with the
mercy petitions. We have already extracted Rule V of the
Mercy Petition Rules relating to forwarding of the required B
materials as expeditiously as possible. On 30.08.2004,
Respondent No. 2 sent a copy of the trial court judgment to
Respondent No. 1 which was received on 09.09.2004.
125. On 18.10.2004, the petitioners' gang leader C
Veerappan was killed in an encounter by a Special Task Force
and his gang disbanded.
126. On 29.04.2005, the Home Minister advised the
President to reject the mercy petitions. There was no further
progress in the petitions till the files were recalled from the D
President and received back in the Ministry of Home Affairs,
i.e., six years later on 16.05.2011. Though separate counter
affidavit has been filed by Respondent No. 1, there is no
explanation whatsoever for the delay of six years. Learned
counsel for the petitioners pointed out that it is pertinent to take E
note of the fact that two consecutive Presidents had deemed
it fit not to act on the advice suggested. In any event, this
procrastination violated the petitioners' right under Article 21
of the Constitution by inflicting six additional years of
imprisonment under the constant fear of imminent death not F
authorized by judgment of any court.
127. On 28.02.2006, Curative Petition being No. 6 of 2006
was dismissed by this Court.
128. In the meanwhile, letters were sent by the petitioners G
to the President of India highlighting their grievance about their.
procrastination for about last twelve years. The information
furnished by the Ministry of Home Affairs under the Right to
- Information Act shows that mercy petitions submitted after the
petitions of the petitioners were given priority and decided H
706 SUPREME COURT REPORTS [2014] 1 S.C.R.
A earlier while the mercy petitions of the petitioners were kept
pending.
129. On 16.05.2011, the mercy petitions were recalled by
Respondent No. 1 from the President. Here again, there is no
8 explanation for the delay of six years. On 25.05.2011, the Home
Minister advised the President for the second time to reject the
mercy petition. On 19.11.2012, the President returned the file
stating that the views of the new Home Minister may be
ascertained. Here again, there is no explanation for the delay
C of 1 Yi years while the file was pending with the President. On
16.01.2013, the Home Minister advised the President for the
third time to reject the mercy petitions. On 08.02.2013, the
President rejected the mercy petitions and Respondent No. 2
was informed vide letter dated 09.02.2013.
D 130. It is the grievance of the petitioners that though they
were informed orally and signatures were obtained, the prison
authorities refused to hand over the copy of the rejection letter
to them or to their advocate. The details regarding delay in this
matter are as follows:
E
Custody suffered till date 14.07.1993 - 20 years 5
17.12.2013 months
Custody suffered under 29.01.2004 - 9 years 11
sentence of death 17.12.2013 months
F
Total delay in disposal of the 12.02.2004 - 9 years
mercy petitions 08.02.2013
131. The delay of six months (12.02.2004 - 07.08.2004)
G when the mercy petitions were being considered by the
Governor is attributed to Respondent No. 1 because the mercy
petition had been sent to Respondent No. 1 on 12.02.2004 and
also because Respondent No. 2/Governor did not have
jurisdiction to entertain the mercy petitions and even if clemency
H had been granted, it would have been null and void.
SHATRUGHAN CHAUHAN v. UNION OF INDIA 707
[P. SATHASIVAM, CJI.]
132. From the particulars furnished by the petitioners as A
well as the details mentioned in the counter affidavit of
Respondent Nos. 1 and 2, we are satisfied that the delay of
nine years in disposal of their mercy petitions is unreasonable
and no proper explanation has been offered for the same. Apart
from the delay in question, according to us, it is important to B
note that delay is undue and unexplained. Certain other aspects
also support the case of the petitioners for commutation.
133. We have already mentioned that on 29.01.2004, this
Court, by its judgment and order, suo mofu enhanced the
sentence from life imprisonment to death. It is relevant to point C
out that when the State preferred an appeal for enhancement
of the sentence from life to death, this Court rejected the claim
ofthe State, however, this Court suo motu enhanced the same
and the fact remains that the appeal filed by the State for
enhancement was rejected by this Court. D
134. In the earlier part of our discussion, we have already
held that the decision in Devender Pal Singh Bhullar (supra),
holding that the cases pertaining to offences under TADA have
to be treated differently and on the ground of delay in disposal E
of mercy petition the death sentence cannot be commuted, is
per incuriam. Further, this Court in Yakub Memon vs. State
of Maharashtra (Criminal Appeal No. 1728 of 2007) delivered
on 21.03.2013 and in subsequent cases commuted the death
sentence passed in TADA case to imprisonment for life. F
135. Taking note of these aspects, viz., their age, in
custody for nearly twenty years, unexplained delay of nine years
in disposal of mercy petitions coupled with other reasons and
also of the fact that the summary prepared by tlJe Ministry of
Home Affairs for the President makes no mention of the delay G
of 9 Yz years and also in the light of the principles enunciated
in the earlier paragraphs, we hold that the petitioners have
made out a case for commutation of death sentence to
imprisonment for life.
H
708 SUPREME COURT REPORTS [2014) 1 S.C.R.
A Writ Petition (Crl.)No. 187 of 2013
136. Praveen Kumar, aged about 55 years, hailing from
Kamataka, has filed this petition. He was charged for murdering
four members of a family and ultimately by judgment dated
B 05.02.2002, he was convicted under Sections 302, 392 and
397 IPC and sentenced to death. The petitioner was defended
on legal aid.
137.. By judgment dated 28.10.2002, death sentence was
confirmed by the Division Bench of the High Court of Karnataka
C and by order dated 15.10.2003, this Court dismissed the
appeal filed by the petitioner.
138. On 25.10.2003, the petitioner sent the mercy petition
addressed to the President of India wherein he highlighted that
0 he has been kept in solitary confinement since the judgment of
the trial Court, i.e., 05.02.2002.
139. On 12.12.2003, Respondent No. 1 requested
Respondent No. 2 to consider the petitioner's mercy petition
under Article 161 of the Constitution and intimate the decision
E along with the copies of the judgment of the trial Court, High
Court, police diary and court proceedings. Respondent No. 1_
also received mercy petition signed by 260 persons. By order
dated 15.09.2004, the Governor rejected the mercy petition. On
30.09.2004, Respondent No. 2 informed Respondent No. 1 that
F the petitioner's mercy petition has been rejected by the
Governor.
140. On 18.10.2004, Respondent No. 1 requested
Respondent No. 2 for the second time to send the judgment of
G the trial Court along with the police diary and court proceedings.
On 20.12.2004, according to Respondent No. 1, Respondent
No. 2 sent the requested documents to Respondent No. 1 but
Respondent No. 1 claimed that the same were in Kannada. On
07.01.2005, Respondent No. 1 returned the documents sent by
H Respondent No. 2 with a request to provide English translation.
SHATRUGHAN CHAUHAN v. UNION OF INDIA 709
[P. SATHASIVAM, CJI.]
. The State Government was again reminded in this regard on A
05.04.2005, 20.04.2005, 04.06.2005 and 21.07.2005. Even
after these reminders, the translated documents were not sent.
141. On 06.09.2005, the mercy petition of the petitioner-
Praveen Kumar was processed and examined without waiting 8
for the copy of the judgment of the trial Court and submitted for
consideration of the Home Minister. The Home Minister
approved the rejection of the mercy petition. On 07.09.2005,
Respondent No. 1 advised the President to reject the
petitioner's mercy petition. On 14.03.2006, Respondent No. 2 C
sent the translated documents to Respondent No.· 1.
142. On 20.08.2006, the petitioner wrote to the President
referring to his earlier mercy petition dated 25.10.2003 stating
that for the last four years and seven months he has been
languishing in solitary confinement under constant fear of death. D
143. On 29.09.2006, the petitioner wrote to the Chief
Minister of Karnataka referring to his earlier mercy petition
dated 25.10.2003 highlighting the same grievance.
144. The information received under RTI Act shows that E
mercy petitions submitted after the petition of the petitioner
were given priority and decided earlier while the mercy petition
of the petitioner was kept pending.
145. On 01.07.2011, the petitioner's mercy petition was F
recalled from the President and received by Respondent No.
1 and thereafter it remained pending consideration of the
President of India for five years and 10 months. There is no
explanation for this inordinate delay.
146. On 14.07.2011, Respondent No. 1 advised the G
President to reject the petitioner's mercy petition. The file
remained with the President till 29.10.2012, i.e. for 1 year 3
months and no explanation was offered for this delay.
H
710 SUPREME COURT REPORTS [2014) 1 S.C.R:
A 147. On 29.10.2012, the President returned the
petitioner's mercy petition to Respondent No. 1 ostensibly on
the ground of an appeal made by 14 former Judges. However,
this appeal, as is admitted in the counter affidavit filed by
Respondent No. 1 itself, "had not indicated any plea in respect
B of Praveen Kumar". On 16.01.2013, Respondent No. 1 advised
the President to reject·the petitioner's mercy petition.
148. On 26.03.2013, the President rejected the petitioner's
mercy petition. On 05.04.2013, the petitioner heard news
reports that his mercy petition has been rejected by the
C President of India. He has not received any written confirmation
of the same till date.
149. On 06.04.2013, this Court stayed the execution of the
sentence in Writ Petition (Crl.) No. 56 of 2013 filed by PUDR.
D The following details show the delay in disposal of petitioner's
mercy petition by the Governor and the President:
Custody suffered till date 2.3.94- 15 years 9
19.2.95+1.2.99- months
17.12.13
E
Custody suffered under 04.02.02- 11 years 1C
sentence of death 17.12.13 months
Total delay since filing of 25.10.2003- 9 years 5
F mercy petition till prisoner 5.4.2013 months
coming to know of rejection
by President
Delay in disposal of mercy 25.10.03- 11 months
G petition by Governor 30.09.04
Delay in disposal of mercy 30.09.04- 8 Y2 years
petition by President 26.03.2013
150. Though learned counsel for the petitioner highlighted
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 711
[P. SATHASIVAM, CJI.]
that the trial Court relied on certain decisions which were later A
held to be per incuriam, in view of the fact that there is a delay
of 9Y2 years in disposal of the mercy petition, there is no need
to go into the aspect relating to the merits of the judicial
decision. On the dther hand, we are satisfied that even though
the Union of India has filed counter affidavit, there is no B
explanation for the huge delay. Accordingly, we hold that the
delay in disposal of the mercy petition is one of the relevant
circumstances for commutation of death sentence. Further, we
perused the notes prepared by the Ministry of Home Affairs as
well as the decision taken by the President. The summary c
prepared by the Ministry of Home Affairs for the President
makes no mention of the unexplained and undue delay of 9 Y2
years in considering the mercy petition. The petitioner has
rightly made out a case for commutation of death sentence into
life imprisonment. D
Writ Petition (Crl.)No. 193 of 2013
151. Gurmeet Singh, aged about 56 years, hailing from
U.P. has filed this petition. According to him, he is in custody
for 26 years. E
152. The allegation against the petitioner is that he
murdered 13 members of his family on 17.08.1986. By order
dated 20.07.1992, the trial Court convicted the petitioner under
Sections 302, 307 read with Section 34 IPC and awarded
F
death sentence.
153. On 28.04.1994, the Division Bench of the Allahabad
High Court pronounced the judgment in the petitioner's Criminal
Appeal No. 1333 of 1992. The two Hon'ble Judges disagreed
with each other on the question of guilt, Malviya, J. upheld the G
petitioner's conviction and death sentence and dismissed his
appeal, while Prasad, J. acquitted the petitioner herein and
allowed his appeal.
154. On 29.02.1996, in terms of Section 392 of the Code, H
712 SUPREME COURT REPORTS [2014] 1 S.C.R.
A the papers were placed before a third Judge (Singh, J.), who
agreed with Malviya, J. and upheld the petitioner's conviction
and sentence.
155. On 08.03.1996, the Division Bench dismissed the
appeal of the petitioner herein and confirmed his death
8
sentence.
156. On 28.09.2005, this Court dismissed the petitioner's
appeal and upheld the death sentence passed on him. The
petitioner was represented on legal aid.
c
157. On 06.10.2005, the petitioner sent separate mercy
petitions through jail addressed to the President of India and
the Governor of Uttar Pradesh.
158. On 24.12.2005, the Prison Superintendent sent a
D radiogram to Respondent No. 2 reminding about the pendency
of the mercy petition. Thereafter, 10 radiograms/letters were
sent till 16.05.2006. These 11 reminders are itself testimony
of the unreasonable delay by the State Government in deciding
the petitioner's mercy petition.
E
159. On 04.04.2006, the Governor rejected the petitioner's
mercy petition.
160. On 26.05.2006, the fact of the rejection by the
F Governor was communicated to Respondent No. 1 and to the
Prison authorities after a delay of more than 1% months.
161. On 16.06.2006, the President forwarded to
Respondent No. 1 letter dated 02.06.2006 of the Additional
District & Sessions Judge, Shahjahanpur, addressed to
G Respondent No. 2 requesting to intimate the status of the
petitioner's mercy petition pending before the President.
162. On 07.07.2006, Respondent No. 1 forwarded the
letter of the Additional District and Sessions Judge to
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 713
[P. SATHASIVAM, CJI.]
Respondent No. 2 with a request to forward the petitioner's A
mercy petition as the same has not been received along with
the judgment of the courts, police diary etc.
163. On 09.02.2007, Respondent No. 2 sent the mercy
petition and other related documents to Respondent No. 1, i.e., B
1O months after the mercy petition was rejected by the
Governor. The Mercy Petition Rules, which we have already
extracted in the earlier part, explicitly provide that the mercy
petition and the related documents should be sent immediately.
There is no explanation for the delay of 10 months in sending C
the papers to Respondent No. 1.
164. On 18.05.2007, Respondent No. 1 advised the
President to reject the petitioner's mercy petition.
165. On 04.11.2009, the petitioner's mercy petition file o
was received from the President's office by Respondent No.
1.
166. Again on 09.12.2009, Respondent No. 1 advised the
President to reject the petitioner's mercy petition. There was
no progress in the petitioner's case for the next 2 years and E
11 months, i.e., till 29.10.2012.
167. On 29.10.2012, the President returned the
petitioner's mercy petition to Respondent No. 1, ostensibly on
the pretext of an appeal made by 14 former judges, even F
though, as is admitted in the counter affidavit filed by
Respondent No. 1, this appeal does not in any way relate to
the case of the petitioner.
168. On 16.01.2013, Respondent No. 1 advised the
President to reject the petitioner's mercy petition. G
169. On 01.03.2013, the President of India rejected the
petitioner's mercy petition.
170. On 05.04.2013, the petitioner heard the news reports H
714 SUPREME COURT REPORTS [2014) 1 S.C.R.
A that his mercy petition has been rejected by the President of
India. However, till date the petitioner has not received any
official written communication that his mercy petition has been
rejected either by the Governor or by the President.
171. On 06.04.2013, this Court stayed the execution of the
8
death sentence of the petitioner in W.P. (Crl.) No. 56 of 2013
filed by the Peoples' Union for Democratic Rights (PUDR).
172. On 20.06.2013, 3 Y2 months after the actual rejection
of the petitioner's mercy petition, the news was communicated
C to the prison authorities. The following are the details regarding
the delay in disposal of mercy petition by the Governor and the
President:
Custody suffered till date 16.10.1986- 26 years 2
17.12:2013 months
D
less 1 year of
under-trial bail
Custody suffered under 20.07.1992- 21 years 5
sentence of death 17.12.2013 months
E j
Total delay since filing of 6.10.2005- 7 years 8
mercy petition till prisoner 20.06.2013 months
coming to know of rejectior
by President
F
Delay in disposal of mercy 6.10.2005- 6 months
petition by Governor 4.4.2006
Delay in disposal of mercy 4.4.2006- 6 years 11
G petition by President 1.3.2013 months
Delay in communicating 1.3.2013- 3 Y2 months
rejection to petitioner 20.06.2013
The above details clearly show that there is a delay of 7 years
H 8 months in disposal of mercy petition by the Governor and the
SHATRUGHAN CHAUHAN v. UNION OF INDIA 715
[P. SATHASIVAM, CJI.]
President. A
173. Though Respondent No. 1 has filed a separate
counter affidavit, there is no acceptable reason for the delay
of 7 years 8 months. In the absence of adequate materials for
such a huge delay, we hold that the delay is undue and
8
unexplained.
174. In the file of the Home Ministry placed before us, at
pages 31 & 32, the following recommendations have been
made for commutation of death sentence to life imprisonment
which are as under: C
"I think that in this case too, we can recommend
commutation of death sentence to life imprisonment for
two reasons:
(1) There was a disagreement amongst the Hon. Judges D
of the High Court implying thereby that there was some
doubt in the mind of at least one Hon. Judge that this might
not be the 'rarest of the rare cases'.
(2) Unusual long delay in investigation and trial is another E-
reason. This kind of submission was also made by the
learned amicus curiae but was disregarded by the Court.
I think the submission should have been accepted.
Accordingly, I suggest that we may recommend that F
the death sentence of Sh. Gurmeet Singh be commuted
to that of life imprisonment but he would not be allowed to
come out of prison till he lives.
Sd/-"
G
However, this was not agreed to by the Home Minister.
175. In view of the reasons and discussion in the earlier
part of our order, the petitioner-convict is entitled to
commutation of death sentence into life imprisonment. Even in H
716 SUPREME COURT REPORTS [2014) 1 S.C.R.
A the summary prepared by the Ministry of Home Affairs for the
President makes no mention of the delay of 7 years 8 months.
We are satisfied that the petitioner has made out a case for
commutation of death sentence into life imprisonment.
B Writ Petition (Crl.) No. 188 of 2013
176. Sonia and Sanjeev Kumar, aged about 30 and 38
years respectively, hailing from Haryana, have filed this petition.
According to them, they are in custody for about 12 years.
c 177. On 27.05.2004, both of them were convicted for the
offence punishable under Section 302 and sentenced to death
by the trial Court. By order dated 12.04.2005, the High Court
confirmed their conviction but modified their sentence of death
into life imprisonment. The order of the High Court was
0 challenged before this Court in Criminal Appeal No. 142 of
2005 and Criminal Appeal No. 894 of 2005 and Criminal
Appeal No. 895 of 2006. By order dated 15.02.2007, this Court
upheld their conviction and enhanced the imprisonment for life
to death sentence.
E 178. In February, 2007, the petitioners filed a mercy
petition before the Governor of Haryana. Similar mercy petitions
were sent to the President.
179. On 23.08.2007, the Review Petitions being Nos. 260-
F 262 of 2007 filed by the petitioners were dismissed.
180. On 31.10.2007, Respondent No. 2 informed
Respondent No. 1 that the mercy petitions filed by the
petitioners have been rejected by the Governor of Haryana and
forwarded the relevant documents.
G
181. On 08.02.2008, Respondent No. 1 advised the
President to reject the petitioner's mercy petitions. The mercy
petitions remained pending with the President till 16.04.2009.
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 717
[P. SATHASIVAM, CJI.]
182. On 16.04.2009, the President sent the petitioners' file A
along with the first petitioner's letter dated 17.02.2009 to reject
their petitions conveying their difficult position to continue with
their life to Respondent No. 1.
183. On 20.05.2009, Respondent No. 1 advised the 8
President for the second time to reject the petitioriers' mercy
petitions.
184. On 04.02.2010, the President returned the
petitioners' file to Respondent No. 1 seeking clarification
whether the first petitioner's request to reject the mercy petition C
amounts to withdrawal of original mercy petition and if so, is
there further need to reject the petition? On 17.02.2010,
Respondent No. 1 referred the President's query to the Law
Department. On 05.03.2010, Respondent No. 1 advised the
President for the 3rd time to reject the petitioners' mercy D
petitions. On 03.01.2012, upon the request of Respondent No.
1, the President returned the petitioners' file to Respondent No.
1. On 18.01.2012, Respondent No. 1 advised the President for
the 4th time to reject the petitioners' mercy petitions.
E
185. On 29.10.2012, the President returned the
petitioners' file back to Respondent No. 1 in the light of the
appeal made by 14 former judges. It is pointed out by learned
counsel that admittedly the appeal was made for other
prisoners and not for the petitioners and so there was no need
to return the files.
F
186. On 29.0.1.2013, since it was found that the judges'
appeal did not pertain to the petition~rs, Respondent No. 1
advised the President for the 5th time to reject the petitioners'
mercy petitions. On 21.02.2013, the petitioners, anxious for a G
decision on their mercy petitions, wrote to the President again
reiterating their plea for mercy.
187. On 28.03.2013, the Presid~nt returned the
petitioners' file to Respondent No. 1, supp.bsedly on account H
718 SUPREME COURT REPORTS [2014] 1 S.C.R.
A of the petitioners' letter dated 21.02.2013. On 06.06.2013,
Respondent No. 1 advised the President for the 6th time to
reject the petitioners' mercy petitions "as no mitigating
circumstance was found". Finally, ori 29.06.2013, the President
rejected the petitioners' mercy petitions.
B
188. On 13.07.2013, the petitioners' family members
received a letter dated 11.07.2013 from the prison authorities
informing that the petitioners' mercy petitions have been
rejected by the President of India. The following are the details
C regarding the delay in disposal of the mercy petition by the
Governor and the President:
Custody suffered till date 26.08.2001/ 12 years 3
19.09.2001- months
17.12.2013
D
Total delay since filing of Feb.2007- 6 years 5
mercy petition till prisoner 13.07.2013 months
coming to know of rejection
by President
E
Delay in disposal of mercy Feb. 2007- 8 months
petition by Governor . 31.10.2007
Delay in disposal of mercy 31.10.2007- 5 years 8
petition by President 29.06.2013 months
F
189. In view of the above details as well as the explanation
offered in the counter affidavit filed by Respondent No. 1, we
hold that the delay in disposal of mercy petitions is undue and
unexplained and in the light of our conclusion in the earlier part
G of our order, the unexplained and undue delay is one of the
circumstances for commutation of death sentence into life
imprisonment.
190. In addition, due to unbearable mental agony after
H confirmation of death sentence, petitioner No.1 attempted
SHATRUGHAN CHAUHAN v. UNION OF INDIA 719
[P. SATHASIVAM, CJI.]
suicide. In view of our conclusion that the delay in disposal of A
mercy petitions is undue and unexplained, we hold that the
petitioners have made out a case for commutation of death
sentence into life imprisonment.
Writ Petition(Crl.)No. 192 of 2013 B
191. PUDR has filed this petition for Sundar Singh, who
is hailing from Uttarkhand. On 30.06.2004, Sundar Singh was
convicted by the Sessions Court under Sections 302, 307 and
436 IPC and sentenced to death. On 20.07.2005, the High
Court confirmed the death sentence passed by the trial Court. C
On 16.09.2010, this Court dismissed the appeal filed by
Sundar Singh through legal aid.
192. On 29.09.2010, Sundar Singh sent a mercy petition
through jail authorities addressed to the President of India 0
stating therein that he had committed the offence due to insanity
and that he repented for the same each day and shall continue
to do for the rest of his life.
193. On 29.09.2010, the prison authorities filled in a
nominal roll for Sundar Singh in which they stated that Sundar E
Singh's mental condition is abnormal. The said form was sent
to Respondent Nos. 1 and 2. The prison authorities noticed that
Sundar Singh's behaviour had become extremely abnormal. He
was initially treated for mental illness by the prison doctor and,
thereafter, he was examined by doctors from the HMM District F
Hospital, Haridwar. Thereafter, when he continued to show
signs of insanity, the prison authorities called a team of
psychiatrists from the State Mental Institute, Dehradun to
examine him. The psychiatrists found him to be suffering from
schizophrenia and recommended that he be sent to Benaras G
Mental Hospital. On 15.10.2010, Sundar Singh was admitted
to Benaras Mental Hospital and he remained there for 1 Y2
years till his discharge on 28.07.2012 with further prescriptions
1
and advice for follow up treatment.
H
720 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 194. On 19.10.2010, Respondent No. 1 informed
Respondent No. 2 in writing that Sundar Singh's mercy petition
should be first sent to the Governor.
195. Based on the direction of Respondent No. 1, on
20.10.2010, the prison authorities forwarded the mercy petition
8
of Sundar Singh to the Governor. On 21.01.2011, the Governor
rejected the mercy petition of Sundar Singh and Respondent
No. 2 forwarded the same to the President.
196. On 24.05.2011, Respondent No. 1 wrote to
C Respondent No. 2 asking for a copy of Sundar Singh's nominal
roll, medical record and crime record. On 01.06.2011,
Respondent No. 2 sent Sundar Singh's nominal roll and medical
report to Respondent No. 1. In the covering letter, Respondent
No. 2 informed Respondent No. 1 that Sundar Singh had been
D declared to be a mental patient by medical experts and was
admitted to Varanasi Mental Hospital for treatment on
11.12.2010.
197. On 03.02.2012, Respondent No. 1 advised the
E President to reject the mercy petition filed by Sundar Singh. On
30.10.2012, the President returned the mercy petition of Sundar
Singh ostensibly because of the petition sent by 14 former
judges wherein there was a specific reference to the case of
Sundar Singh.
F 198. On 28.12.2012, Sundar Singh was examined by a
doctor.in prison who noted that he was "suicidally inclined" and
prescribed him very strong anti psychotic medicines. Despite
that, on 01.02.2013, Respondent No. 1 advised the President
to reject the mercy petition of Sundar Singh.
G
199. On 16.02.2013, the prison authorities again called a
team of three psychiatrists from the State Mental Hospital,
Dehradun, who examined Sundar Singh. In their report, they
mentioned that Sundar Singh had already been diagnosed as
H suffering from undifferentiated schizophrenia. They noted that
SHATRUGHAN CHAUHAN v. UNION OF INDIA 721
[P. SATHASIVAM, CJI.]
he was "unkempt and untidy, cooperative but not very much A
communicative" and his "speech is decreased in flow and
content" and "at times is inappropri~te and illogical to the
question asked." They concluded as follows:
"he is suffering from chronic psychotic illness and he needs 8
long term management".
The prison authorities sent this· report to Respondent No.
1.
200. On 31.03.2013, the President rejected the mercy C
petition of Sundar Singh. On 02.04.2013, Respondent No. 1
informed Respondent No. 2 that the President has rejected the
mercy petition of Sundar .Singh. On 05.04.2013, Sundar Singh
was orally informed by the prison authorities that his mercy
petition had been rejected by the President but he did not o
appear to understand and did not react.
201. On 06.04.2013, this Court stayed the execution of
death sentence of Sundar Singh in W.P.(Crl.) No. 56 of 2013
filed by PUDR.
E
202. On 31.10.2013, at the instance of the prison
authorities, Dr. Arun Kumar, Neuro Psychiatrist from the State
Mental Institute, Dehradun was brought to the prison to examine
Sundar Singh. He opined as follows:
F
"Sundar Singh is suffering from schizophrenia
(undifferentiated) and requires long term bed rest. He is
not mentally fit to be awarded for death penalty."
203. We have carefully perused all the details. Though
there is a delay of only 2 Yz years in considering the mercy G
petition of Sundar Singh, the counter affidavit as well as various
communications sent by the jail authorities clearly show that
Sundar Singh was suffering from mental illness, i.e.,
Schizophrenia.
H
722 SUPREME COURT REPORTS [2014) 1 S.C.R.
A 204. In the earlier part of our order, while considering
"mental illness", we have noted Rules 386 and 387 of the U.P.
Jail Manual which are applicable to the State of Uttarakhand
also, which clearly show that when condemned convict develops
insanity, it is incumbent on the part of the Superintendent to stay
B the execution of sentence of death and inform the same to the
District Magistrate. In the reply affidavit filed on behalf of
Respondent Nos. 2-4 insofar as mental illness of the convict -
Sundar Singh is concerned, it is stated as under:
"16. As far as illness of the convict Sunder Singh is
c concerned, he has been regularly medically examined as
per the provisions of the jail manual, he was examined by
Medical Officers of HMM District Hospital, Haridwar and
thereafter on the recommendation of the Doctors of State
Mental Health Institute, Dehradun, the Prisoner was sent
D to Mental Hospital, Varanasi on 15.10.2010 for
examination and treatment.
17. Convict Sunder Singh was admitted in the Mental
Hospital, Varansai for treatment and after his treatment,
E Board of Visitors under Chairpersonship of District Judge,
Varansai, convict Sunder Singh was found fit and,
therefore, they discharged the convict Sunder Singh along
with certain prescription and advice on 28.7.2012 from
Mental Hospital, Varanasi. ..
F 18. In pursuance of above advice of the Doctors of Mental
Hospital, Varansai, on the request of the Jail
Administration to State Mental Hospital, Selaqui,
Dehradun, a panel of three Doctors visited on 16.2.2013
and examined the Convict Sunder Singh and opined that
G on the basis of information and present assessment, he
is suffering from chronic psychiatric illness and he need
long term treatment. ..
19. Convict has thereafter been regularly provided due
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 723
[P. SATHASIVAM, CJI.]
medical assistance in the form of medicine and A
examination. On 31.10.2013, Dr. Arun Kumar, neuro
psychiatric from State Mental Health. Institute, Selaqui,
Dehradun visited to the District Jail for examination of the
Convict Sunder Singh and opined: Impression: Sunder
Singh is suffering from Schizophrenia {undifferentiated) and B
require long term bed rest. He is not mentally fit to be
awarded for death penalty ...
20. On 5.11.2013, on the aforesaid report dated
31.10.2013, Chief Medical Superintendent, State Medical C
Health Institute Selaqui Dehradun, has been requested to
send a panel of Doctors for thorough examination of the
mental state of the said Prisoner Sunder Singh. Upon
medical examination by a board of Doctors and receipt
of the examination report the State and Jail Authorities
shall act in accordance with law. D
In view of the above submission, this Hon'ble Court
may kindly pass appropriate orders disposing of the
present petition. The answering respondent is duty bound
to comply the orders passed by the Hon'ble Court." E
Along with the reply affidavit, the State has fairly enclosed the
medical reports, various correspondence/intimation about the
Schizophrenia of lunatic nature/mental illness of the petitioner
suffering from Schizophrenia. Further, even on 24.05.2011, the
Government of India, Ministry of Home Affairs, after receipt of F
mercy petition of the condemned prisoner - Sundar Singh
requested the Principal Secretary, Government of Uttarakhand,
Secretariat, Dehradun to furnish the following documents/
information at the earliest:
G
{i) Present age of the prisoner along with nominal roll.
{ii) Medical report of the prisoner
{iii) Previous crime record, if any, of the prisoner.
H
724 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 205. Pursuant to the same, Shri Rajeev Gupta, Principal
Secretary, Government of Uttarakhand furnished all the details
to the Joint Secretary (Judicial), Ministry of Home Affairs,
Government of India, Jaisalmer House, New Delhi enclosing
various medical reports. Learned counsel for the State has also
B placed mental status of Sundar Singh duly certified by the State
Mental Health Institute, Dehradun which is as under:
"MENTAL STATUS EXAMINATION REPORT
Prisoner Name: Mr. Sunder Singh, age about 40 yrs/male,
C S/o Mr. Har Singh with mark of identification - Black mole
over left side lower part of neck, has been assessed by
following experts on 16/2/2013 at District Jail, Haridwar.
Dr. J.S. Bisht, Psychiatrist
D Dr. Arun Kumar, Psychiatrist
Dr. Pratibha Sharma, Psychiatrist
As per information by jail staff and fellow prisoners
E above mentioned prisoner is not interacting with others, not
concerned about personal hygiene and would like to stay
alone.
Previous record show that he was referred to
Banaras Mental Hospital on 11 /12/201 Ofor Management
F after being diagnosed as Undifferentiated Schizophrenia
by previous psychiatrist.
Current mental status examination shows that he is
unkempt and untidy, cooperative but not very much
G communicative. Speech is decreased in flow and content.
At time it was inappropriate and illogical to the question
asked. Affect is blunted. Thought flow is decreased and
there is poor awareness ...
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 725
[P. SATHASIVAM, CJI.]
OPINION A
On the basis of information and present
assessments he is suffering from chronic Psychotic illness
and he needs long term treatment.
B
(Signature of Dr. illegible) (Signature of Dr. illegible)
(Signature of Dr. illegible)
Date 16/2/2013
c
Dr. J.S. Bisht Dr. Arun Kumar Dr. B. Pratibha Sharma
Psychiatrist
Thumb Date 16/2/13 Distt. Jail Haridwar"
D
MENTAL STATUS EXAMINATION REPORT
Prisoner Name: Mr. Sunder Singh, age about 41 years/
male, S/o Mr. Har Singh
Identification Mark: Black mole over left side lower part of E
neck.
Index prisoner is examined by me at District Jail, Haridwar.
As per information by jail staff, prisoner records and current F
mental status examination, the sufferings from
undifferentiated Schizophrenia which is chronic illness. The
patient/prisoner require long term treatment to remain in
remission period. Person with mentioned diagnose remain
· in remission and cannot be said as cured. G
Impression: Sunder Singh is suffering from Schizophrenia
(Undifferentiated) and required long term treatment
H
726 SUPREME COURT REPORTS [2014) 1 S.C.R.
A He is not mentally fit to be awarded for death penalty.
(Signature of Dr. Arun Kumar)
Date 31/10/13
Dr. Arun Kumar
(MBBS, DPM, DNB)
B Neuropsychiatries
State Mental Health Institute
Salequi Dehradun
Thumb Attested LTI of Sunder Singh
(Signature of Dr. Arun Kumar)
c Date 31/10/13
Dr. Arun Kumar
(MBBS, DPM, DNB)
Neuropsychiatries
State Mental Health Institute
D Salequi Dehradun"
206. Even if we agree that there is no undue delay in
disposal of the mercy petition by the President, we are satisfied
that Sundar Singh is suffering from mental illness, i.e.,
Schizophrenia as noted by 3 doctors, viz., Dr. J.S. Bisht, Dr.
E Arun Kumar, and Dr. Pratibha Sharma, Psychiatrists attached
to the State Mental Health Institute, Salequi, Dehradun.
207. In the earlier part of our discussion, we have
highlighted various Rules from the U.P. Jail Manual which are
F applicable to the State of Uttarakhand also, various international
conventions to which India is a party and the decisions by the .
U.N.O. regarding award of death sentence and execution of
persons suffering from mental illness. Though all the details
were furnished by the persons concerned to Respondent No.
G 1, Ministry of Home Affairs, unfortunately, those aspects were
neither adverted to by the Home Minister nor the summary
prepared by the Ministry of Home Affairs for the President
makes any reference to the mental condition as certified by the
competent doctors.
H 208. We are satisfied that in view of the mental illness, he
SHATRUGHAN CHAUHAN v. UNION OF INDIA 727
[P. SATHASIVAM, CJI.]
cannot be executed. On this ground, the death sentence has A
to be commuted to life imprisonment. If the condition of Sundar
Sigh requires further treatment, we direct the jail authorities to
provide all such medical facilities to him.
Writ Petition (Crl.)No. 190 of 2013 B
209. The death convict Jafar Ali, aged about 48 years,
hailing from U.P., has filed the above writ petition. According
to him, he is in custody for more than 11 years (single cell
confinement).
c
210. On 14.07.2003, the petitioner was convicted under
Section 302 IPC for the murder of his wife and five daughters
and was sentenced to death. On 27.01.2004, the Division
Bench of the Allahabad High Court confirmed the death
sentence passed on the petitioner. On 05.04.2004, the o
petitioner through legal aid filed SLP (Crl.) No. 1129 of 2004.
This Court did not grant special leave and dismissed the SLP
in limine.
211. On 19.04.2004, the petitioner sent a mercy petition
through jail superintendent to the President of India and the E
Governor of Uttar Pradesh. On 22.04.2004, Respondent No. 4
sent a radiogram to Respondent No. 2 to enquire about the
status of the petitioner's rnercy petition. Thereafter, between
24.04.2004 and 16.05.2005, 14 more such radiograms/letters
were sent by Respondent No. 4 to Respondent No. 2 enquiring F
about the status of the petitioner's mercy petition. These 15
reminders testify to the unreasonable delay caused by the State
Government in deciding the petitioner's mercy petition.
212. On 20.05.2005, one year after the receipt of the mercy G
petition, Respondent No. 2 wrote to the District Magistrate and
the Government Advocate, Allahabad High Court for the trial
court as well as the High Court judgments relating to the
petitioner's case. Here again, there is no explanation for the
delay of 11 months.
H
728 SUPREME COURT REPORTS [2014) 1 S.C.R.
A 213. On 30.09.2005, the Government Advocate, Allahabad
High Court sent the High Court judgment in the petitioner's case
to Respondent No. 2. Here again, there is no explanation for
the delay of four months in sending the judgment.
8 214. On 28.11.2005, the Governor rejected petitioner's
mercy petition. It took one year and seven months in rejecting
the petitioner's mercy petition in spite of 15 reminders. On
30.12.2005, the Special Secretary, UP Government informed
the Home Ministry, Government of India about the rejection of
C mercy petition by the Governor.
215. On 22.12.2005, information about the rejection of the
mercy petition by the Governor was communicated to the
prison authorities one month after its rejection. On 18.01.2006,
Respondent No. 1 requested Respondent No. 2 to furnish the
D petitioner's mercy petition along with the recommendation of
the Governor, judgments of the courts and other records of the
case.
216. On 17.07.2006, Respondent No. 2 sent the
E documents to Respondent No. 1 which were requested vide
letter dated 18.01.2006 along with a request for an early
intimation of the decision on the mercy petition. Here again,
there is no explanation for the delay of seven months in sending
those documents.
F 217. As pointed out earlier, Rule V of the Mercy Petition
Rules explicitly provides that the mercy petition should be sent
along with the judgments and related documents immediately.
There is no explanation for this inordinate delay of seven months
in sending the papers to Respondent No. 1.
G
218. On 17.08.2006, Respondent No. 1 advised the
President to reject the mercy petition. On 16.01.2007,
Respondent No. 2 sent another reminder to Respondent No. 1
regarding the pendency of the petitioner's mercy petition.
H Thereafter, further 15 reminders were sent on various dates i.e.,
SHATRUGHAN CHAUHAN v. UNION OF INDIA 729
[P. SATHASIVAM, CJI.]
on 06.09.2007, 10.07.2008, 19.02.2009, 17.03.2009, A
29.05.2009, 27.07.2009, 10.09.2009, 29.09.2009, 10.11.2009,
14.01.2010, 20.04.2010, 26.07.2010, 30.08.2010, 15.07.2011
and 22.11,2011. These 16 reminders testify the unreasonable
delay caused in deciding the petitioner's mercy petition.
B
219. On 30.09.2011, Respondent No. 1 recalled the files
from the President. There is no explanation for this inordinate
delay of 5 years and 1 month. On 01.11.2011, Respondent No.
1 advised the President to reject the mercy petition.
220. On 30.10.2012, the President returned the mercy C
petition to Respondent No. 1 ostensibly on the ground of a
petition sent by 14 retired judges to the President. There was
no reference of the plea of Jafar Ali in the representation made
by 14 retired judges. On 24.01.2013, Respondent No. 1
advised the President to reject the mercy petition. On D
14.03.2013, the President rejected the mercy petition, viz., 7
years and 4 months after rejection by the Governor and after
16 reminders sent by the State Government.
221. On 19.03.2013, Respondent No. 1 informed E
Respondent No. 2 of the rejection of the mercy petition. On
05.04.2013, the petitioner heard the news reports that his mercy
petition has been rejected by the President of India.
·222. On 06.04.2013, this Court stayed the execution of the
petitioner in Writ Petition (Crl.) No. 56 of 2013 filed by PUDR. F
223. On 22.06.2013, the prison authorities were informed
vide letter dated 18.06.2013 that the President rejected the
petitioner's mercy petition. There is no explanation for this delay
of three months in informing the prison authorities and the G
petitioner about the rejection of the mercy petition.
224. On 08.07.2013, Respondent No. 4 informed the
petitioner that his mercy petition had been rejected by the
President.
H
730 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 225. The details regarding delay in disposal of mercy
petitions by the Governor and the President are as follows:
Custody suffered till date 27.07.2002 - 11 years; 5
17.12.2013 months
B
Custody suffered under 14.07.2003 - 10 years, 5
sentence of death 17.12.2013 months
Total delay in disposal of 19.04.2004 - 9 years, 2
mercy petition 22.06.2013 months
c
Delay in disposal of mercy 19.04.2004 - 1 year, 5
petition by Governor 29.09.2005 months
Delay in disposal of mercy 29.09.2005 - 7 years, 5
D petition by the President 14.03.2013 months
Delay in intimating prisoner 14.03.2013 - 3 months
of rejection of mercy petition 22.06.2013
by President
E 226. A perusal of the details furnished by the petitioner,
counter affidavit filed by the Union of India as well as the State
clearly shows that the delay was to the extent of 9 years. Though
in the counter affidavit Respondent No. 1 has discussed various
aspects including the decision taken by the Home Ministry and
F the note which was prepared for the approval of the President,
the fact remains that there is no explanation at all for taking
seven years and five months for disposal of a mercy petit(on
by the President. It is for the executive, viz., the Home Ministry,
to explain the reason for keeping the mercy petition for such a
G long time. To that extent, everyday, after the confirmation of
death sentence by this Court is painful for the convict awaiting
the date of execution.
227. Accordingly, in view of the unexplained and undue
H delay of nine years in disposal of mercy petition by the Governor .
. SHATRUGHAN CHAUHAN v. UNION OF INDIA 731
[P. SATHASIVAM, CJI.]
and the President, we hold that the petitioner is entitled to A
commutation of death sentence to life.
228. Apart from undue and unexplained delay in disposal ·
of mercy petition, another relevant aspect has not been noted
by the Ministry while preparing the notes for the President, viz.,
8
when the petitioner preferred special leave to appeal against
the decision of the High Court confirming the death sentence,
this Court did not grant special leave and dismissed the SLP
in limine. Though such recourse is permissible inasmuch as
since it is a case of death sentence, it is desirable to examine C
the materials on record first hand in view of time-honoured
practice of this Court and to arrive at an independent
conclusion on all issues of facts and law, unbound by the
findings of the trial court and the High Court. This principle has
been highlighted in various decisions including the recent one
.in Mohd. Ajmal Kasab vs. State of Maharashtra (2012) 9 SCC D
1.
229. In addition, we also perused the notes prepared by
the Ministry of Home Affairs, the decision taken by the Home
Ministry and the notes placed for the approval of the President. E
It is not in dispute that the summary prepared by the Ministry
of Home Affairs for the President failed to consider the undue
delay and there is no explanation for the same at all.
230. We are satisfied that all these grounds enable this F
court to commute death sentence into life.
Writ Petition (Crl.) Nos. 191 and 136 of 2013
, 231. Writ Petition (Crl.) No. 191 of 2013 has been filed
by Maganlal Barela, death convict, aged about 40 years, hailing G
from the State of M.P. and on his behalf, PUDR has filed Writ
Petition {Crl.) No. 136 of 2013 for similar relief.
232. The petitioner claims that he is in custody for more
than three years (single cell confinement). On 03.02.2011, the
petitioner, who is a tribal, was convicted by the Sessions Court H
732 SUPREME COURT REPORTS [2014] 1 S.C.R.
A under Section 302 IPC for the murder of his five daughters and
under Section 309 IPC and was imposed a sentence of death.
On 12.09.2011, the Division Bench of the Madhya Pradesh
High Court confirmed the death sentence passed on the
petitioner who was represented on legal aid. On 09.01.2012,
B the petitioner, through legal aid, filed SLP (Crl.) Nos. 329-330
of 2012. This Court did not grant special leave and dismissed
the SLP in limine.
233. On 02.02.2012, the petitioner sent a mercy petition
through jail addressed to the President of India and the
C Governor of Madhya Pradesh. The mercy petition, which was ,
verified by the prison authorities, stated inter a/ia that the
petitioner was suffering from mental illness and was
continuously undergoing treatment through Central Jail, Bhopal.
D 234. On 20.02.2012, the Prison Superintendent, in
accordance with Rule 377 of the Madhya Pradesh Prison
Manual, submitted a form to the State Government. In column
18, it was stated that his conduct in prison was good. Against
column 19, which was for the Prison Superintendent to opine
E on alteration of the petitioner's sentence, the Superintendent
opined as follows:
"Commutation of sentence is recommended".
235. On 20.02.2012, the Prison Superintendent, in
F accordance with the Government Law and Judiciary
Department Circular No. 4837/21 dated 13.12.1982 submitted
to the State Government a form entitled "Required Information".
The entries made by the Superintendent in the said form stated
inter alia that the petitioner is not a habitual criminal, he belongs
G to the weaker section of the society and he is of mental disorder
and at present under treatment of Psychiatry Department
Hamidia Hospital, Bhopal. Against Column No. 11 which seeks
the Superintendent's recommendations, it was stated that,
"Commutation of Sentence is recommended".
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 733
[P. SATHASIVAM, CJI.]
236. On 07.08.2012, Respondent No. 1 received the A
petitioner's mercy petition forwarded by Respondent No. 2.
There was a delay of six months in forwarding the mercy
petition to Respondent No. 1 and no explanation was given by
Respondent No. 2 in the counter affidavit.
B
237. On 31.08.2012, Respondent No. 1 wrote to
Respondent No. 2 requesting the petitioner's medical report
since in the mercy petition, it was stated that the petitioner is
suffering from mental illness. Respondent No. 1 also requested
Respondent No. 2 to confirm whether the petitioner had filed a C
review petition in tpis Court against the dismissal of his SLP.
238. On 19.10.2012, Respondent No. 1 sent a reminder
to Respondent No. 2 about the queries vide letter dated
31.08.2012. On 29.11.2012, Respondent No. 1 sent the second
reminder to Respondent No. 2 about the queries. On D
26.02.2013, Respondent No. 1 sent a third reminder to
Respondent No. 2 about the same.
239. On 25.03.2013, the Jail Superintendent, Central Jail,
Indore forwarded the medical report to Respondent No. 1 and E
it was also informed that the petitioner has not filed a review
petition in this Court against the dismissal of his SLP.
240. On 06.06.2013, the Home Minister advised the
President to reject the mercy petition. On 16.07.2013, the
President rejected the petitioner's mercy petition. There was F
no reference to the petitioner's mental health report in the note
prepared for approval of the President. Likewise, there was no
reference to the fact that this Court had rejected the petitioner's
SLP in limine in a death case.
G
241. On 27.07.2013, the petitioner was orally informed by
the prison authorities that his mercy petition has been rejected
by the President of India. The petitioner was neither furnished
with any official written communication regarding the rejection
of his mercy petition by the President of India nor the petitioner H
734 SUPREME COURT REPORTS [2014] 1 S.C.R.
A was informed that his mercy petition has been rejected by the
Governor.
242. On 27.07.2013, the Superintendent of the Central
Prison, Jabalpur sent a letter to the lcchawar Police Station
asking them to inform the petitioner's family to meet the
8
petitioner urgently.
243. On 07.08.2013, this Court stayed the execution of the
petitioner in Writ Petition (Crl.) No. 136 of 2013 filed by PUDR.
The details regarding delay in disposal of mercy petition are
C as follows:
Delay by State to send 2.02.2012 - 6 months
mercy petition to MHA 07.08.2012
Total delay since mercy 2.02.2012 - 1 year 6
D
petition was filed 27.07.2013 months
Delay by State to send 31.08.2012 - 7 months
medical report to MHA 25.03.2012
E Delay by President 7.08.2012 - 1 year
27.07.2013
Insofar as the delay is concerned, it cannot be claimed that
the same is excessive though there is a delay of one year in
F disposal of mercy petition by the President. However, during
the period of trial before the Sessions court and even after
conviction, the petitioner was suffering from mental illness. This
is clear from the note made by the Prison Superintendent who
opined for alteration of petitioner's sentence from death to life.
G This important aspect was not noted by the Home Ministry.
244. Another relevant event which was not noticed by the
Home Ministry while considering the notes for approval of the
President was that the petitioner filed SLP through legal aid and
this Court did not grant special leave and dismissed the SLP
H in limine. As highlighted in the previous case, we reiterate that
SHATRUGHAN CHAUHAN v. UNION OF INDIA 735
[P. SATHASIVAM, CJI.]
in case of death sentence, it is desirable to examine all the A
materials on record first hand in accordance with the time-
bound practice of this Court and arrive at an independent
conclusion on all the issues of fact and law irrespective of the
findings of the trial court and the High Court. Such recourse was
not adopted in .this case. This was not highlighted in the notes B
prepared for the approval of the President. As stated earlier,
the summary prepared by the Ministry of Home Affairs for the
President fails to consider the mental illness as well as the
opinion offered by the Prison Superintendent in terms of the
M.P. Prison Manual as a ground for commutation of sentence. c
For all these reasons, more particularly, with regard to his
mental illness, we feel that ends of justice would be met by
commuting the sentence of death into life imprisonment.
Writ Petition (Crl.) Nos. 139 and 141 of 2013
D
245. Shivu - death convict, aged about 31 years, hailing
from Karnataka, has filed Writ Petition (Crl.) No. 139 of 2013.
Jadeswamy, aged about 25 years, also hailing from Karnataka,
has filed Writ Petition (Crl.) No. 141 of 2013. Both are
challenging the rejection of their mercy petitions on various E
grounds. According to them, they are in custody for 11 years
and 10 months.
246. Both the petitioners were convicted for an offence
under Sections 302, 376 read with Section 34 IPC and were
sentenced to death. On 07.11.2005, the Karnataka High Court F
confirmed the petitioners' death sentence. On 13.02.2007, this
Court dismissed their appeal and upheld the death sentence
awarded to them.
247. On 27.02.2007, both the petitioners filed separate G
mercy petitions addressed to the Governor of Karnataka and
the President of India through the Prison Superintendent.
248. On 21.03.2007, Respondent No. 1 wrote to
Respondent No. 2 requesting to consider petitioners' mercy H
736 SUPREME COURT REPORTS [2014) 1 S.C.R.
A petitions under Article 161 of the Constitution and, in the event
of rejection, to send the mercy petition along with the
recommendations, copies of the judgments, copies of the
records of the case, etc. to Respondent No. 1 for consideration
under Article 72 of the Constitution.
B
249. On 05.04.2007 and 09.05.2007, review petitions filed
by the petitioners were dismissed.
250. On 10.08.2007, Respondent No. 2 informed
Respondent No. 1 that the Governor has rejected the mercy
C petitions and forwarded the copy of the trial court judgment, the
Supreme Court judgment and mercy petitions.
251. On 09.10.2007, Respondent No. 1 wrote to
Respondent No. 2 requesting him to provide the judgment of
0 the High Court, the police diary, the court proceedings and the
English translation of the trial court judgment. Respondent No.
2 sent some of these documents on 26.07.2012, i.e., after 4
years and 9 Yi months and the rest of the documents were sent
on 03.12.2012, i.e., after 5 years and 2 months. There was also
E no explanation as to why Respondent No. 1 did not take steps
to expedite the matter for such a long period.
252. On 03.04.2013, Respondent No. 1 advised the
President to reject the mercy petitions. There was a delay of 5
years and 8 months after the Governor rejected the mercy
F petitions.
253. On 27.05.2013, the President returned the file along
with the mercy petitions sent by Shivu's mother and the
members of the Badrayyanhalli Gram Panchayat.
G 254. On 24.06.2013, Respondent No. 1 advised the
President to reject the mercy petitions. On 27.07.2013, the
President rejected the petitioners' mercy petitions.
255. On 13.08.2013, the petitioners were informed by the
H prison authorities that their mercy petitions have been rejected
SHATRUGHAN CHAUHAN v. UNION OF INDIA 737
[P. SATHASIVAM, CJI.]
by the President. On 16.08.2013, the local police visited the A
petitioners' family members and informed that they would be
executed at 6 a.m. on 22.08.2013 at Belgaum Central Prison.
The said procedure was contrary to the Prison Manual. As per
the present Rules, the execution can only be scheduled after
14 days of informing the prisoner of rejection of mercy petition B
and in this case the same was not being followed. The following
are the details regarding delay in disposal of mercy petitions
by the Governor and the President:
Total custody period till date 15.10.2001 - 12 years 2
17.12.2013 months
c
Period under sentence of 29.07.2005 - 8 years 5
death 17.12.2013 months
Total delay in deciding mercy 27.02.2007 - 6 Ya years D
petitions 13.08.2013
Delay by the Governor 27.02.2007 - 6 months
10.08.2007
E
Delay by the President 10.08.2007 ....: 6 years
13.08.2013
256. It is true that there is some explanation in the affidavit
filed on behalf of the State in respect of the time taken by the
Governor for rejection of their mercy petitions, however, there F
is no acceptable/adequate reason for delay of six years at the
hands of the Ministry of Home Affairs followed by the rejection
order by the President.
257. Though learned counsel has referred to the fact that G
the trial court and the High Court followed certain decisions
which were later held as per incuriam, in view of the fact that
there is undue delay of six years which is one of the
circumstances for commutation of sentence from death to life,
we are not adverting to all other aspects. H
738 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 258. We also perused the records of the Ministry of Home
Affairs produced by learned ASG and the summary prepared
for approval of the President. There is no specific explanation
in the summary prepared by the Ministry of Home Affairs for
the President for the delay of six years. In view of the same and
B in the light of the principles enunciated in various decisions
which we have adverted to in the earlier part of our judgment,
we hold that the petitioners have made out a case for
commutation of sentence.
c Guidelines:
259. In W.P (Crl) No 56 of 2013, Peoples' Union for
Democratic Rights have pleaded for guidelines for effective
governing of the procedure of filing mercy petitions and for the
cause of the death convicts. It is well settled law that executive
D action and the legal procedure adopted to deprive a person of
his life or liberty must be fair, just and reasonable and the
protection of Article 21 of the Constitution of India inheres in
every person, even death-row prisoners, till the very last breath
of their lives. We have already seen the provisions of various
E State Prison Manuals and the actual procedure to be followed
in dealing with mercy petitions and execution of convicts. In view
of the disparities in implementing the already existing laws, we
intend to frame the following guidelines for safeguarding the
interest of the death row convicts.
F 1. Solitary Confinement: This Court, in Sunil Batra
(supra), held that solitary or single cell confinement
prior to rejection of the mercy petition by the
President is unconstitutional. Almost all the prison
Manuals of the States provide necessary rules
G governing the confinement of death convicts. The
rules should not be interpreted to run counter to the
above ruling and violate Article 21 of the
Constitution.
H 2. Legal Aid: There is no provision in any of the
SPIATRUGHAN CHAUHAN v. UNION OF INDIA 739
[P. SATHASIVAM, CJI.]
Prison Manuals for providing legal aid, for preparing A
appeals or mercy petitions or for accessing judicial
remedies after the mercy petition has been
rejected. Various judgments of this Court have held
that legal aid is a fundamental right under Article 21.
Since this Court has also held that Article 21 rights B
inhere in a convict till his last breath, even after
rejection of the mercy petition by the President, the
convict can approach a writ court for commutation
of the death sentence on the ground of supervening
events, if available, and challenge the rejection of
the mercy petition and legal aid should be provided
c
to the convict at all stages. Accordingly,
Superintendent of Jails are directed to intimate the
rejection of mercy petitions to the nearest Legal Aid
Centre apart from intimating the convicts.
D
3. Procedure in placing the mercy petition before
the President: The Government of India has
framed certain guidelines for disposal of mercy
petitions filed by the death convicts after disposal
of their appeal by the Supreme Court. As and when E
any such petition is received or communicated by
the State Government after the rejection by the
Governor, necessary materials such as police
records, judgment of the trial court, the High Court
and the Supreme Court and all other connected F
documents should be called at once fixing a time
limit for the authorities for forwarding the same to
the Ministry of Hom€! Affairs. Even here, though
there are instructions, we have come across that in
certain cases the Department calls for those G
records in piece-meal or one by one and in the
same way, the forwarding Departments are i:ilso not
adhering to the procedure/instructions by .;ending
all the required materials at one stroke. This should
be strictly followed to minimize the delay. After
H
740 SUPREME COURT REPORTS [2014] 1 S.C.R.
A getting all the details, it is for the Ministry of Home
Affairs to send the recommendation/their views to
the President within a reasonable and rational time.
Even after sending the necessary particulars, if
there is no response from the office of the
B President, it is the responsibility of the Ministry of
Home Affairs to send periodical reminders and to
provide required materials for early decision.
4. Communication of Rejection of Mercy Petition
by the Governor: No prison manual has any
c provision for informing the prisoner or his family of
the rejection of the mercy petition by the Governor.
Since the convict has a constitutional right under
Article 161 to make a mercy petition to the
Governor, he is entitled to be informed in writing of
D the decision on that mercy petition. The rejection of
the mercy petition by the Governor should forthwith
be communicated to the convict and his family in
writing or through some other mode of
communication available.
E
5. Communication of Rejection of the Mercy
Petition by the President: Many, but not all, prison
manuals have provision for informing the convict
and his family members of the rejection of mercy
petition by the President. All States should inform
F
the prisoner and their family members of the
rejection of the mercy petition by the President.
Furthermore, even where prison manuals provide
for informing the prisoner of the rejection of the
mercy petition, we have seen that this information
G is always communicated orally, and never in writing.
Since the convict has a constitutional right under
Article 72 to make a mercy petition to the President,
he is entitled to be informed in writing of the
decision on that mercy petition. The rejection of the
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 741
[P. SATHASIVAM, CJI.]
mercy petition by the President should forthwith be A
communicated to the convict and his family in
writing.
6. Death convicts are entitled as a right to receive
a copy of the rejection of the mercy petition by B
the President and the Governor.
7. Minimum 14 days notice for execution: Some
prison manuals do not provide for any minimum
period between the rejection of the mercy petition
being communicated to the prisoner and his family c
and the scheduled date of execution. Some prison
manuals have a minimum period of 1 day, others
have a minimum period of 14 days. It is necessary
that a minimum period of 14 days be stipulated
between the receipt of communication of the D
rejection of the mercy petition and the scheduled
date of execution for the following reasons:-
(a) It allows the prisoner to prepare himself mentally for
execution, to make his peace with god, prepare his E
will and settle other earthly affairs.
(b) It allows the prisoner to have a last and final
meeting with his family members. It also allows the
prisoners' family members to make arrangement~
to travel to the prison which may be located at a F
distant place and meet the prisoner for the last time.
Without sufficient notice of the scheduled date of
execution, the prisoners' right to avail of judicial
remedies will be thwarted and they will be
prevented from having a last and final meeting with G
their families.
It is the obligation of the Superintendent of Jail to
see that the family members of the convict receive
the message of communication of rejection of H
•
742 SUPREME COURT REPORTS [2014] 1 S.C.R.
A mercy petition in time.
8. Mental Health Evaluation: We have seen that in
some cases, death-row prisoners lost their mental
balance on account of prolonged anxiety and
suffering experienced on death row. There should,
B
therefore, be regular mental health evaluation of all
death row convicts and appropriate medical care
should be given to those in need.
9. Physical and Mental Health Reports: All prison
C manuals give the Prison Superintendent the
discretion to stop an execution on account of the
convict's physical or mental ill health. It is, therefore,
necessary that after the mercy petition is rejected
and the execution warrant is issued, the Prison
D Superintendent should satisfy himself on the basis
of medical reports by Government doctors and
psychiatrists that the prisoner is in a fit physical and
mental condition to be executed. If the
Superintendent is of the opinion that the prisoner
E is not fit, he should forthwith stop the execution, and
produce the prisoner before a Medical Board for a
comprehensive evaluation and shall forward the
report of the same to the State Government for
further action.
F 10. Furnishing documents to the convict: Most of
the death row prisoners are extremely poor and do
not have copies of their court papers, judgments,
etc. These documents are must for preparation of
appeals, mercy petitions and accessing post-mercy
G judicial remedies which are available to the
prisoner under Article 21 of the Constitution. Since
the availability of these documents is a necessary
pre-requisite to the accessing of these rights, it is
necessary that copies of relevant documents should
H be furnished to the prisoner within a week by the
SHATRUGHAN CHAUHAN v. UNION OF INDIA 743
[P. SATHASIVAM, CJI.]
prison authorities to assist in making mercy petition A
and petitioning the courts.
11. Final Meeting between Prisoner and his Family:
While some prison manuals provide for a final
meeting between a condemned prisoner and his
family immediately prior to execution, many manuals B
do not. Such a procedure is intrinsic to humanity
and justice, and should be followed by all prison
authorities. It is therefore, necessary for prison
authorities to facilitate and allow a final meeting
between the prisoner and his family and friends C
prior to his execution.
12. Post Mortem Reports: Although, none of the Jail
Manuals provide for compulsory post mortem to be
conducted on death convicts after the execution, we
think in the light of the repeated arguments by the D
petitioners herein asserting that there is dearth of
experienced hangman in the country, the same
. must be made obligatory.
In Deena alias Deen Dayal and Ors. vs. Union of India E
(1983) 4 sec 645, the petitioners therein challenged the
constitutional validity of Section 354(5) on the ground that
hanging a convict by rope is a cruel and barbarous method of
executing death sentence, which is violative of Article 21 of the
Constitution. This court held as follows:-
F
"7 .... After making this observation Bhagwati, J., proceedS'
thus:
The physical pain and suffering which the execution
of the sentence of death involves is also no less cruel and
inhuman. In India, the method of execution followed. is G
hanging by the rope. Electrocution or application of lethal
gas has not yet ta~~n its place as in some of the westero
countries. It is therefore with reference to execution by
hanging that I must consider whether the sentence of death
is barbaric and inhuman as entailing physical pain and H
744 SUPREME COURT REPORTS [2014] 1 S.C.R.
A agony. It is no doubt true that the Royal Commission on
Capital Punishment 1949-53 found that hanging is the
most humane method of exe .;uti">n and so also in Ichikawa
v. Japan, the Japanese Su')reme Court held that execution
by hanging does not correspond to cruel punishment
B inhibited by Article 36 of the Japanese Constitution. But
whether amongst all the methods of execution, hanging is
the most humane or in view of the Japanese Supreme
Court, hanging is not cruel punishment within the meaning
of Article 36, one thing is clear that hanging is undoubtedly
unaccompanied by intense physical torture and pain."
c (emphasis supplied).
81. Having given our most anxious consideration to the
central point of inquiry, we have come to the conclusion
that, on the basis of the material to which we have referred
D extensively, the State has discharged the heavy burden
which lies upon it to prove that the method of hanging
prescribed by Section 354(5) of the CrPC does not violate
the guarantee right contained in Article 21 of the
Constitution. The material before us shows that the
E system of hanging which Is now In vogue consists
of a mechanism which Is easy to assemble. The
prellmlnarles to the act of hanging are quick and
simple and they are free from anvthlng that would
unnecessarily sharpen the poignancy of the
prisoner's apprehension. The chances of an accident
F
during the course of hanging can safely be excluded.
The method Is a quick and certain means of
executing the extreme penalty of law. It ellmlnates the
possibility of a llngerlng death. Unconsciousness
supervenes almost Instantaneously after the process
G Is set In motion and the death of the prisoner follows
as a result of the dislocatlon of the cervical vertebrae.
The system of hanging. as now used. avoids to the
full extent "the chances of strangulation which
results on account of too short a drop or of
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA 745
[P. SATHASIVAM, CJI.]
decapitation which results on account of too long a A
drop. The system is consistent.with the obligation of
the State to ensure that the process of execution is
conducted with decency and decorum without
involving degradation of brutality of any kind."
It is obvious from a reading of the aforesaid decision that B
the method of hanging prescribed by Section 354(5) of the
Code was held not violative of the guaranteed right under
Article 21 of the Constitution on the basis of scientific evidence
and opinions of eminent medical persons which assured that
hanging is the least painful way of ending the life. However, it C
is the contention of learned counsel for the respondents that
owing to dearth of experienced hangman, the accused are
. being hanged in violation of the du~ procedure.
260. By making the performance of post mortem
obligatory, the cause of the death of the convict can be found D
out, which will reveal whether the person died as a result of the
dislocation of the cervical vertebrate or by strangulation which
results on account of too long a drop. Our Constitution permits
the execution of death sentence only through procedure
established by law and this procedure must be just, fair and E
reasonable. In our considered view, making post mortem
obligatory will ensure just, fair and reasonable procedure of
execution of death sentence.
Conclusion: F
261. In the aforesaid batch of cases, we are called upon
to decide on an evolving jurisprudence, which India has to its
credit for being at the forefront.of the global legal arena. Mercy_
jurisprudence is a part of evolving standard of decency, which
is the hallmark of the society. G
262. Certainly, a series of Constitution Benches of this
·court have upheld the Constitutional validity of the death
sentence in India over the span of decades but these
judgments in no way take away the duty to follow the due
H
746 SUPREME COURT REPORTS [2014] 1 S.C.R.
A procedure established by law in the execution of sentence. Like
the death sentence is passed lawfully, the execution of the
sentence must also be in consonance with the Constitutional
mandate and not in violation of the constitutional principles.
263. It is well established that exercising of power under
B Article 72/161 by the President or the Governor is a
constitutional obligation and not a mere prerogative.
Considering the high status of office, the Constitutional framers
did not stipulate any outer time limit for disposing the mercy
petitions under the said Articles, which means it should be
C decided within reasonable time. However, when the delay
caused in disposing the mercy petitions is seen to be
unreasonable, unexplained and exorbitant, it is the duty of this
Court to step in and consider this aspect. Right to seek for
mercy under Article 721161 of the Constitution is a constitutional
D right and not at the discretion or whims of the executive. Every
Constitutional duty must be fulfilled with due care and diligence;
otherwise judicial interference is the command of the
Constitution for upholding its values.
264. Remember, retribution has no Constitutional value in
E our largest democratic country. In India, even an accused has
a de facto protection under the Constitution and it is the Court's
duty to shield and protect the same. Therefore, we make it clear
that when the judiciary interferes in such matters, it does not
really interfere with the power exercised under Article 72/161
F but only to uphold the de facto protection provided by the
Constitution to every convict including death convicts.
265. In the light of the above discussion and observations,
we dispose of the writ petitions. In the cases of Suresh, Ramji,
G Bilavendran, Simon, Gnanprakasam, Madiah, Praveen Kumar,
Gurmeet Singh, Sonia, Sanjeev, Sundar Singh, Jafar Ali,
Magan Lal Berala, Shivu and Jadeswamy, we commute the
death sentence into imprisonment for life. All the writ petitions
are, accordingly, allowed on the above terms.
H D.G. Writ Petitions allowed.
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