Holding

No absolute rule that a delay exceeding two years mandates commutation; the death sentence cannot be vacated solely on the ground of delay and must be decided on the totality of facts.

Summary

Sher Singh and others were convicted of murder under IPC s.302/34 and sentenced to death in 1977. After the High Court upheld the sentence and the Supreme Court dismissed their Special Leave Petition, the petitioners filed writ petitions under Art.32 claiming that a delay of more than two years in executing the death sentence violated Art.21 and entitled them to commutation to life imprisonment, relying on T.V. Vatheeswaran. The Court held that while prolonged delay is an important factor, no rigid two‑year rule can be imposed; each case must be examined on its facts, considering the cause of delay, the nature of the offence and other relevant circumstances. Consequently, the death sentence could not be vacated merely for delay, and the matter was referred back for further hearing on whether execution would be unjust or unfair. The Court also directed that petitions under Arts.72, 161 and CrPC ss.432, 433 be disposed of within three months.

Issues considered

The applicability of a two‑year delay rule in execution of death sentences under Art.21.
Whether prolonged delay alone warrants commutation of a death sentence to life imprisonment.
Whether the petitioners are entitled to relief under Art.21 given the delay.
The appropriate procedure for disposing of clemency petitions under Arts.72, 161 and CrPC ss.432, 433.

Legislation cited

Code of Criminal Procedure, 1973s. 432, s. 433
Constitution of Indias. Article 161, s. Article 21, s. Article 72
Indian Penal Code, 1860s. 302, s. 34

Subjects

death penaltyArticle 21delay in executioncommutationcapital punishmentconstitutional lawcriminal procedurefair trial

Judgment

ss2
SHER SINGH & OTHERS
A
v.

THE STATE OF PUNJAB

B March 24, 1983

(Y.V. CHANDRACHUD, C.J., V.D. TULZAPURKAR AND
A. VARADARAJAN, JJ.J

Constitution of India-Art. 21-Fair procedure-Prisoner sentenced
c to death-Delay in execution of S(!ntence-Prisoner entitled to invJke jurisdiction
under Art. 21 for exan1ining whether it is just and fair to allow sentence to
be executed-Prisoner cannot den;and that sent"ence of (1eath should be quashed
and substituted by sentence of life hnprisonnent-Prl lrnged delay is an
important consideratiun but se1•eral ether factors n,'USt aho be Jaken into
accou'nt-NO absJ/ute or unqualified rule can be laid down.
D
The petitioners were convicted under s. 302 read with s. 34 l.P.C.
-and were sentenced)o death on November 26, 1977. The High Court upheld
the conviction and sentence on July 18, 1978. The petitioners' Special Leave
Petition against the judgment of the High Court was dismissed on March
5, 1979 and the Review Petition against the dismissal of tte Special Leave
Petition was also dismissed on MarCh 2-r, 1981. The petitioners' successive
E writ: ·petitions challenging the validity of ss. 302 and 34 l.P.C. were dismissed
on January 20, 1981 and August 24, 1981 respectively. The present writ
petitions were filed on ~1arch 2, 1983 on the basis of the decision in
.T. V. Vatheeswaran v. State of Tan1il Na}u which was rendered on February
16, 1983.

F The contention on beLlalf of the petitioners wa·. that more than two
years had elapsed since they were sentenced to death· by the trial court and
therefore they were entitled in terms of the ruling in Vatheeswa"an to demand
that the said sentence should be quashed and substituted by the sentence of
life imprisonment.

G HELD : Prolonged delay in the execution of a death sentence is
unquestionably an important consideration for determining whether the
sentence should be allowed to be executed. But no hard and fast rule that
"dela)[exceeding two years in the execution of a sentence of death should be
considered sufficient to entitle the person under sentence of death to invoke
Art. 21 and demand the quashing of the sentcne& of death" can be laid down
ff as has been done in VaJheeswaran. [594 E-F]

(i) No absolute or unqualified rule can be laid doWn that in evCry
case in which there is a long delay in the execution of a death sentence,· the
SHER SINGH V, PUNJAB 583

sentence must ·be substituted by the sentence of life imprisonment. There
are several other factors which must be taken into account while considering A
-;
the queition as to whether the death sentence should be vacated. A convict
is entitled to pursue all remedies lawfully open to· hiin and get rid of the
sentence of death imposed upon him and his taking recourse t.o them to ask
f0r the commutation of his sentence even after it is finally confirmed by this
Court is understandable. But, it h, at least, relevant to consider whether
the delay in the execution of the death sentence is attributable to the fact that
he has resorted to a series of untenable proceedings which haye the ·effect of
B
defeating the ends of justice. It is not uncommon that a series of review
petitions and writ petitions are filed in this Court to challenge judg-
ments and orders which have assumed finality, without any seeming justifica-
tion. Stay orders are obtained in those proceedings and then, at the end
of i~ all, ·comes the argument that the,re has been prolonged delay ill imple-
menting the judgment or order. The Court called upon to vacate a death c
sentence on the ground of delay caused in executing that sentence must find
why tb:e delay was caused and wh_o is responsible for it. If this is not done,
the law laid down by thh Court will become an object of ridicule by
permitting a person to defeat it by resorting to frivolous proceedings in
order to delay its implementation. Further, the nature of the offence, the
diverse circumstances attendant upon it, its impact upon the contemporary
society and the question whether the rrotivation and pattern of the crime D
.are such as are likely to lead to its repetition if the death sentenc" is vacated,
are matters which must enter_ into the verdict as to whether the sentence
should be \'acated for the reason that its execution is delayed. The substitution
of the death sentence by a gent' nee of life imprisonment cannot follow by the
application of the two years' formula as a matter of •·•quod erat demon~
strandum." [595 D-H ; 596-AE] . E
.. T. V. VatheesW.ran v. State of Tamil Nalu. [1983] 2 S.C.R. 348 overruled .

(ii) The period of two years purports to have been fixed in Vatheeswaran
after making ''all reasonable allowance for the time necessary for appeal and
1 consideration of reprieve." It is not possible to agree with this part of the F
judgment in that case. The fixation of the time Jimit of two years does not
accord With the common experience of the time normally consumed by the
litigative process and the proceedings before the executive. A period far
exceeding two years is generally taken by the High Court and this Court
together for the disposal of matters involving even the death sentence.
Very often four or five years elapse between the imposition of ·death ~entence
by the Sessions Court and the disposal of the Special Leave Petition or an
G
Appeal by this Court in that matter. This is ap"art from the time which the
President or the Governor, as the ca~e may be, takes to consider petitions filed
under Art. 72 or Art. 161 of the Constitution or the time which the Govern-
ment takes_ to dispose of application filed under ss. 432 and 433 of the Code of
Criminal Procedure. [594-F-H; 595-AC] H
(iii) Piare Dusadh is not an authority for the proposition that if a certain
.number of years have passed since the imposition of a death· sentence,
584 SUPREME COURT REPORTS iJ983j 2 s.C.R.

that sentence must- necessarily be commuted to life imprisonment. In
A that case the Federal Court commuted the sentence of death to sentence of
transportation for life: for reasons other than that a long delay had intervened
after the d~ath sentence was imposrd. Jn Ediga Anamma, Piare Dusadh was
regarded as a leading case on the point. In the other judgments of this Court
referred to in Vatheeswaran, this Court was hearing appeals against judgments of
High Courts confirming the sentence of death. However, the Court has not
taken the narrow view that the jur:isdiction to interfere wi tf1 a death sentence
B can be exercised only in an appeal against the judgment of conviction and
sentence. In very recent times, the sentence of death has been commuted to life
imprisonment by this Court in quite a few cases for the reason, inter alia, that
the prisoner was under the spectre of the sentence of death for an unduly
long tin1e after the final confirmation of that sentence. [589 B-D-H;
590-A-D]
c
Piare Dusadh, [1944]' F.C.R. Yo!. 6 61; Ediga Anamma, (1974] 3
$.C.R. 329; Sunil Batra v. Delhi Administration, (1979] I S.C.R. 392;
Maneka Gandhi [1978] 2 S.C.R. 621; Bachan Singh, [1980] 2 S.C.C. 684,
Hussainara Khatoon, [1980] I S.C.C. 98; Hoskot, [1978] 3 S.C.C. 544; Bhuvan
Mohan Patnaik, [1975] 2 S.C.R. 24; and Prabhakar Pandurang [angzgiri, [1966]
D 1 S.C.R. 702 referred to.

(iv) Article 21 is as much relevant at the stage of execution of tl1e death
sentence as it is in the interregnum betwren the imposition of that sentence and
its 1,;xecution. The essence of the matter is that all procedure, no matter what
the stage, must be fair, just and reasonable. It is well established that a
E prisoner cannot be tortured or s.ubjected to unfair or inhuman treatment. It is
a logical extension of the self same principle that the death sentence, e\en if
justifiably im.Posed, cannot be executed if supervening events make its execution
harsh, unjust or unfair. A prisoner who has experienced living death for years
-·
on end is entitled to invoke the jurisdiction of this Court for examining the
question whether, after all the agony and torment he has been subjected to,
it is just and fair to allow the sentence of death to be executed. That is the T
F true implication of Art. 21 of the Constitution. [593 B-GJ

Bhuvan Mohan Patnaik, [t975] 2 S.C.R. 24; Prabhakar Pandurang
Sangzgiri, [1966] I S.C.R. 702; and Suni/ Batra v. Dellri Administration, [1979]
I S.C.R. 392referred to.

G (v) Traditionally, subsequent events :re taken into account in the area
of civil law. There is no reason why they should not receive due consideration
in other jurisdictions, part·cularly when their relevance on the implementation
or execution of judicial verdicts is undeniable. Principles analogous to res
judicata govern all judicial proceedings but when new situations emerge,
particularly factual, after a verdict has assumed finality in the course of the
H hierarchical process, advertance to those situations. i_s not barred on the
g[.ound that a fi.nirdecision has been rendered already. That final decision
is not a decision on new facts. Courts are never powerless to do justice, that ,
SilER SINGH v. PUNJAB (ChanJrachuJ, CJ.) 585
is· to say, to ensure that the processes of law do not result in undue misery,
suffering or hardship. That is why, even after the final seal of approval is A
/
.....,_ placed upon a setitence of death, this Court has exercised its power to direct,
ex deblto justiciae, that though the sentence was justified when passed, its
execution, in the circumstances of the case, is not justified by reason of the
unduly Jong time which has elapsed since the confirmation of that sentence by
this Court. [590-E-HJ
•
In the instant case, the sentence of death imposed upon the petitioners B
by the Sessions Court and which ~as upheld by the High Court and this
Court cannot be vacated inerely for the reason that there has been a long delay
in the execution of that sentence. Counsel for the petitioners ha\'e been asked
to argue upon the reasons' why, apart from the delay caused ih executing tne
death sentence, it would be unjust and unfair to execute that sentence at thiS
point of tin1e. The question will be decided after hearing the parties. [596-G-H ;
597·A·B]
c
2. Petitions ~led under Arts. 72 and 161 of the Constitution and under
ss. 432 and 433. Cr. P.C. must be disposed of expeditiously. A self imposed
rule should be followed by the executive authorities that every such petition
shall be disposed of within a period of three months from the date on which it
is received. (597-C] D
ORIGINAL JURISDICTION: Writ Petition Nos. 232 & 233 of 1983.

(Under article 32 of the Constitution of India)

M .S. Joshi, N.D. Garg and Rajiv Kumar Garg for the Petitioners. E·
·~ D.D. Sharma for the Respondent.

The Judgment of the Court was delivered by

CHANDRACHUD, CJ. An important question arises for conside- F
ration in these two writ petitions. That question is whether a delay
exceeding two years in the execution of a sentence of death must be
considered sufficient for setting aside that sentence. 'Learned counsel
who appears on behalf of the petitioners relies upon a decision of
- this Court in T.V. Vatheeswaran v. The State of Tamil Nadu(') and
contends that since more than two years have passed since the petiti· G
oners were sentenced to death by the Trial Court, they are entitled to
demand that the said sentence should be quashed and substituted by
the sentence of life imprisonment.

The petitioners, Sher Singh and Surjit .Singh, and one Kuldip H
Singh were convicted under section 302 read witli section 34 of the
(I) [1983] 2 S.C.R. 348

•
586 SUPREMll COURT REPORTS ll983) Z ii.C.R.

Penal Code and were sentenced to death by the learned Sessions
A Judge, Sangrur, on November 26, 1977. By a judgment dated July
18, 1978 the High Court of Punjab and Haryana reduced the sen-
tence imposed upon Kuldip Singh to life imprisonment but upheld
the sentence of death imposed upon the petitioners.· The High Court
also imposed a sentence of fine of Rs. 5000 on Kulclip Singh and
a fine of Rs. 5000 on each of the petitioners; Special Leave
B
Petition (Cr!.) No. 1711of1978 which was filed by the petitioners
against the judgment of the High Court was dismissed by this Court
on March 5, 1979. The petitioners then filed a Writ Petition in this
Court challenging the validity of section 302 of the Penal Code. That
petition was dismissed on January 20, 1981. Review Petition.No. 99
c of 1981 filed by the petitioners against the dismissal of their S.l..P.
was dismissed by this Court on March 27, 1981. The petitioners
filed yet another petition under article 32 of the ~onstitution, this
time challenging the validity of section 34 of the Penal Code. That
petition was dismissed on August 24, 1981. After failing in these.
seemingly inexhaustible series of proceedings, the petitioners filed <,,
D these two writ petitions on.March 2, 1983, basing themselves on the
decision rendered by Justice Chinnappa Reddy and Justice R.B.
Misra on February 16, 1983 in Vatheeswaran.

the question which arose for consideration in Vatheeswaran
is formulated by Chinnappa Reddy, J., who spoke for the Court, in
E these terms :

"But the question is whether in a case where after the
sentence of death is given, the accused person is made to
undergo inhuman and degrading punishment or where
F the execution of the sentence is endlessly delayed and the .
accused is made to suffer the most excruciating agony and
anguish, is it not open to a court of appeal or a court
exercising writ jurisdiction, in an appropriate proceeding
to take note of the circumstance when it is brought to its
notice and give relief where necessary ? "
G
This question arose on the following facts as stated in the judg-
ment of Brother Chinnappa Reddy :

( 1) The prisoner was rightly sentenced to death.
H (2) He was the 'arch-villain of a villainous piece' and the
brain behind a cruel conspiracy to impersonate Cus-
toms officers, pretend to question unsuspecting visi-

•
SHE~ SINGH v. PUNJAB (Chandrachud, C.J.) 5S1

tors to the city of Madras, abduct them on the
pretext of interrogating them, administer sleeping A
pills to the unsuspecting victims, steal their cash and
jewels and finally murder them. The plan was
ingeniously fiendish and the appellant was its archi-
tect.

(3) Since January 19, 1975 when the Sessions Judge
B
pronounced the sentence of death, the prisoner was
kept in solitary confinement contrary to the decision
of this Court in Sunil Batra v. Delhi Administra-
tion. (1) Before that, he was a 'prisoner under remand'
for two years. c
On these facts, the argument advanced in this Court on behalf
of the prisoner was that taking away his life after keeping him in jail
for ten years, eight of which were spent in illegal solitary confinement,
is a gross violation of the fundamental rights guaranteed by Article 21 D
of the Constitution. · '

In Vatheeswaran, our learned Brethren have drawn sustenance
· to their conclu'.ion from one judgment of the Federal Court of India,
five judgments of this Court, one of the Privy Council and one of the
U.S. Supreme Court. As to the meaning and implications of Article E
• .:> 21 of the Constitution, they have relied upon the decisions of this
Court in Sunil Batra,(1) Mane,ca Gandhi,(') Bachan Singh, (')
Hussainara Khatoon (') and Hoskot.( 5) The judl\i'ent in Bhuvan Mohan
Patnaik (6) and Prabhakar Pandurang Sangzgiri (') have been relied
upon to show that prisoners who are under a sentence of death and
detenus are enti.tled to certain fundamental rights. F

ln Piare Dusadh, (8) the Federal Court was considering appeals
against the judgments of the High Courts of Allahabad, .Madras,
. Nagp.ur and Patna, under the special Criminal Courts Ordinance II
of 1942. In Case Nos. XLI and XLII, the High Court of Patna had G

(1) [1979]1 SCR 392.
(2) [19]8] 2 SCR,621.
(3) [1980J 2 sec 684.
(4) [ 1980J 1 sec 98.
·' (5) [19781 3 sec 544. ff
(6) f 1975] 2 SCR 24.
(7) [1966] 1 SCR 702.
(8) [1944] F.C.R. Vol. 6. 61.
588 SUPREME COURT REPORTS [1983) 2 s.c�R.

confirmed the sentence of death passed on the appellants by the
A Special Judge. It was urged before the Federal Court that the death
sentence imposed in those cases should be reduced to transportation
for life on account of the time that had elapsed since the sentences
were first pronounced. The Court observed :

B •

"It is true that dea!h sentences were imposed in these
cases several months ago, that the appellants have been
lying ever since under threat of execution, and that the
long delay has been caused very largely by the time taken
in proceedings over legal points in respect of the cons·
c titution of the courts before which they were tried and of
the validity of the sentences themselves. We do not doubt
that this court has power, where there has been inordi·
nate delay in executing death sentences in cases which
come before it, to allow the appeal in so far as the death
sentence is concerned and substitute a sentence of trans·
D
portation for life on account of the time factor alone,
however right the death sentence was at the time when it
was originally imposed. But this is a jurisdiction which
very closely entrenches on the powers and duties of the
executive in regard to sentences imposed by courts. It is
E a jurisdiction which any court should be slow to exercise.
We do not propose ourselves to exercise it in these cases.
Except in Case No. XLVII (in which we are commuting
the sentence largely for other reasons as hereafter appe·
ars), the circumstances of. the crimes were such that if
the death sentence which was the only sentence that could
F have been properly imposed originally, is to be commuted,
we feel that it is for the executive to do so."

lt was urged before the Federal Court that in England, when
cases in which death sentence has been imposed are allowed to be
G
taken to the House of Lords on account of some important legal
point, the consequential gelay in finally disposing of the case was
treated as a ground for the commutation of the death sentence and
that a similar course m ight well be adopted in India in cases in
which substantial questions of law as to the interpretation of the
H
Constitution Act had to be considered by the Federal Court. This
argument was rejected on the ground that these were matters prima·
rily for the consideration of the executive.
SHER SINGH V• Pl!NIAB (Chandiachud, C.J.) 589

In Case No. XLVII, which was one of the cases before the
Federal Court, the appellant was convicted by a special Judge of the A
offence of murder and was sentenced to death on September 30,
1942. The Allahabad High Court confirmed the sentence . of death
but the Federal Court commuted that sentence to transportation
of life. As is evident from the parenthetical portion of the passage
extracted above, this was done "largely for other reasons", that is to B
say, for reasons other than that a long delay had intervened after
the death sentence· was imposed. The Federal Court commuted the
death sentence on the ground that the sentence of trasnportation for
life was more appropriate in the circumstances of the case. They
added that the appellant was awaiting the execution of his death
sentence for over a year: C
It is thus clear that Piare Dusadh is not an authority for the
.Proposition that if a certain number of years have passed since the
the imposition of a death sentence, that sentence Tnust necessarily be
commuted to life imprisonment.
D
In Ediga Anamma(') this Court was hearing an appeal against
the sentence of death imposed upon the appellant. Finding that the
appellant was a young woman of 24 who was flogged out of her
husband's house by the father-in-law, this Court reduced her sen·
tence to life imprisonment for a variety of factual reasons peculiar
to the case, like her entanglement into a sex net, that she had a
E
young boy to look after and so on. Sp·~aking for the Court, Krishna
·~ Iyer, J. added:

"What may perhapsbe an extrinsic factor but recognised
by the Court as of humane significance in the sentencing F
context is the brooding horror of 'hanging' which has
been haunting the prisoner in her condemned cell for over
two years. The Sessions Judge pronounced the death
penalty on December 31, 1971, and we are now in
February 1974. This prolonged agony has ameliorative
impact according to the rulings of this Court." G

Piare Dusadh was regarded by the Court as a leading case
on this point. We have already adverted to the circumstances in
which the death sentence was commuted to transportation for life in H
that case.

\ll (197413 s.c,R, 329
590 SUPREME COURT REPORTS [1983] 2 S.C.R,

In the other cases referred to in Vatheeswaran, (supra) this Court
A was hearing appeals against the judgments of High Courts confirm-
ing the sentence of death. In those cases, the sentence of death was
commuted into life imprisonment by this Court by reason of the long
interval which had elapsed either since the imposition of the death
sentence or since the date of the occurrence. ·
B
But we must hasten to add that this Court has not taken the
narrow view tbat. the jurisdiction to interfere with a death sentence
can be exercised only in an appeal agaimt the judgment of conviction
and sentence. The queetion which arises in such appeals is whether
the extreme penalty provided by Jaw is called for in the circumstances
c of the case. The question which arises in proceedfogs such as those
before us is whether, even if the death sentence was the only appro-
priate sentence to impose in the case and was therefore imposed, it
will be harsh· aml unjust to exec.ute that sentence by reason of
supervening events. In very recent times, the sentence of death has
been commuted to life imprisonment by this Court in quite a few
D cases for the reason, inter a/ia, that the prisoner was under the spectre
of the sentence of death for an unduly long time after the final
confirmation of that sentence, consequent u pan the dismissal of the
prisoner's Special Leave Petition or Appeal by this Court.
Traditionally, subsequent events are taken into account in the
E area of civil Jaw. There is no reason why they should not
receive due consideration in other jurisdictions, particularly
when their relevance on the implementation or execution of
judicial verdicts is undeniable. Undoubtedly, principles analogous
to Res-judicata govern all judicial proceedings but when new situa·
tions emerge, particularly factual, after a verdict has assumed finality
F in the course of the hierarchical process, advertence to those situa· J
tions is not barred on the ground that a final decision bas been
rendered already. That final decision is not a decision on new facts.
Courts are never powerless to do justice, that is to say, to ensure
that the processes of law do not result in undue misery, suffering ·or
hardship. That is why, even after the final seal of approval is placed
G upon a sentence of death, this Court has exercised its power to direct,
ex debito justiciae, that though tne sentence was justified when
passed, its execution. in the circumstances of the case, is not justified
by reason of the unduly long time which has elapsed since the con-
firmation of that sentenc~ by this Court. Some of us dealing with
H
this case have been parties to decisions directing, in appropriate
cases, that the death sentence shall not be· executed by reason of
supervening circumstances.
SHER SINGH v. PUNJAB (Chaitdrachud. C.J.) 591

In Vatheeswaran, the prisoner was nnder the sentence of death
for over eight years and was in the jail for two years before that. A
After the death sentence was pronounced upon him, he was kept in
solitary confinement, contrary to this Court's ruling in Sunil Batra.
These supervening considerations, inter alia, were unquestionably
germane to the decision whether the death sentence should be allow-
ed to be executed. The Court took them into account and commuted
the sentence to life imprisonment. B

Like our learned Brethren, we too consider that the view
expressed in this behalf by Lord Scarman and Lord Brightman in the
Privy Council decision of Neol Riley (1) is, with respect, correct. The
majority in that case did not pronounce upon this matter. The mino-
rity expressed the opinion that the jurisprudence of the civilized
c
world has recognized and acknowledged that prolonged delay in
executing a sentence of death can make the punishment when it
comes inhuman and degrading : Sentence of death. is one thing ;
sentence of death followed by lengthy imprisonment prior to execu-
tion is another. The prolonged anguish of alternating hope and D.
despair, the agony of uncertainty, the consequences of such suffering
on the mental emotional, and physical integrity and health of the
individual can render the decision to execute the sentence of death
an inhuman and degrading punishment in circumstances of a given
case.
E
Death sentence is constitutionally valid and permissible within
the constraints of the rule in Bachan Singh. This has to be accepted
as the law of the land. We do not, all of us, share the views of every
f one of us. And that is natural because, every one of us has his own
philosophy of law and life, moulded and conditioned by his own F
assessment of the performance and potentials of law and the garner-
ed experiences of life. But the decisions rendered by this Court after
a full debate have to be accepted without mental' reservations nntil
they are set aside.

The fact tliat it is permissible to irqpose the death sentence in G
appropriate. cases does not, however,, lead to the conclusion that the
sentence must be executed in every case in which it is upheld, regard-
less of the events which have happened since the imposition or the
upholding of that sentence. The inordinate delay in the execution of
the sentence is one circumstance which has to be taken into account H

(1) 1982 Crl. Law Review 679,
592 SUPREME COURT REPORTS [1983 2 S.C R.

while•deciding whether the death sentence ought to be allowed to be
A executed in a given case. In his sociological study called 'Condemn-
ed to Die, Life Under Sentence of Death', Robert Johnson says :

"Death row is barren and uninviting. The death
row inmate must contend with a segregated environment
marked by immobility, reduced stimulation, and the pros-
B
pect of. harassment by staff. There is also the risk that
visits from loved ones will become increasingly rare, for
the man who is "civilly dead" is often abandoned by the
living. The condemned prisoner's ordeal is usually a
lonely one and must be met largely through his own
c resources. The uncertainties of his case-pending appeals,
unanswered bids for commutation, possible changes in the
law-may aggravate adjustment problems. A continuing
and pressing concern is whether one will join the substan-
tial minority who obtain a reprieve or will be counted
among the to-be-dead. Uncertainty may make the
D dilemma of the death row inmate more complicated than
simply choosing between maintaining hope or surrendering
to despair. The condemned can afford neither alternative,
but must nurture both a desire to live and an acceptance
of imminent death. As revealed in the suffering of
E terminally ill patients, this is an extremely difficult task,
one in which resources afforded by family or those within
the institutional context may prove critical to the person's
adjustment. The . death row inmate must achieve equi-
• -·
librium with few coping supports. In the process, he must
somehow maintain his dignity and integrit)'' (page 4)
F
"Death row is a prison within a prison, physically
and socially isolated from the prison community and the
outside world. Condemned prisoners Jive twenty-three
and one-half hours alone in their cells ... " (page 47)
G
The author proceeds lo say :

"Some death row inmates, attuned to the bitter
irony of their predicament, characterize their existence as
H a living death and themselves as the living dead. They
are speaking symbolically, of course, but their imagery is
an appropriate description of the human experience in a
world where life is so obviously ruled by death. It takes
SHER SINGH v. PUNJAB (Chandrachud, C.J.) 593

into account the condemned prisoners' massive depriva-
tion of personal autonomy and command over resources A
critical to psychological survival ; tomblike setting, marked
by indifference to basic human needs and desires; and their
enforced isolation from the living, with the resulting emo-
tional emptiness and death." (page 110)

A prisoner who has experienced Jiving death for years on end
is therefore entitled to invoke "the jurisdiction of this Court for
examining the question whether, after all the agony and torment he
has been subjected to, it is just and fair to allow the sentence of
death to be executed. That is the true implication of Article 21 of
the Constitution and to that extent, we express our broad and c
respectful agreement with our learned Brethren in their visualisation
of the meaning of that article. The horizons of Article 21 are ever
widening and the final word on its compectus shall never have been
said. So long as life lasts, so long shall it be the dufy and endeavour
of this Court to give to the provisions of our Constitution a meaning
D
which will prevent human suffering and degradation. Therefore,
Article 21 is as much relevant at the stage of execution of the death
sentence as it is in the interregnum between the imposition of that
sentence and its execution. The essence of the matter is that all
procedure, no matter what the stage, must be fair, just and reason-
able. It is well-established that a prisoner cannot be tortured or E
subjected to unfair or inhuman treatment. (See Prabhakar Pandurang
Sangzgiri, Bhuvan Mohan Patnaik and Sunil Batra). It is a logical
extension of the self-same principle that the death sentence, even
if justifiably imposed, cannot be executed if supervening events make
f its execution harsh, unjust or unfair. Article 21 stands like a sentinel
over human misery, degradation and oppression. Its voice is the F
voice of justice and fairplay. That voice can never be silenced on the
ground that the time to heed to its imperatives is long since past in
the story of a trial. It reverberates through all stages-the trial, the
sentence, the incarceration and finally, the execution of the sentence.
G
In cases too numerous to mention, this Court has released under-
trial prisoners who were held in jail for periods longer than the period
to which they could be sentenced, if found guilty :. this jurisdiction
relates to pre-trial procedure. In Hussainara Khatoon (supra)
and Champa/a/( 1), speedy trial was held to be an integral part of the H
•

(I) · AIRl-981SC1675,

•
594 SUPREME COURT REPORTS (1983) 2 S.C.R.

right conferred by Article 21 : this jurisdiction relates to procedure
A during the trial. In Prabhakar Pandurang Sangzgiri, the Court upheld
the. right of a detenu, while in detention, to publish a book of
scientific interest called 'Inside the Atom'; in Bhuvan Mohan Patnaik,
it was held that prisoners had to be afforded reasonable human
conveniences and that the live-wire mechanism fixed on prison-walls
B in pursuance of administrative instructions could not be justified as
reasonable if it violated the fundamental rights of the prisoners ; in
Sunil Batra, solitary confinement and bar-fetters were disapproved as
normal modes of securing prisoners. These three cases· are illustra-

c
tive of the Court's jurisdiction to review prison regulations and to
regulate the treatment of prisoners while in jail. And, last but not
the least, as we have stated already, death sentences have been
·+
commuted to life imprisonment by this Court either while disposing
of Special Leave Petitions and Appeals or while dealing with Writ
Petitions filed after the unsuccessful termination of the normal
processes of litigation : this jurisdiction relates to the execution of
the sentence. This then is the vast sweep of Article 21.
D
What we have said above delineates the broad area of agree·
ment between ourselves and our learned Brethren who decided
Vathee{{Waran. We must now indicate with precision t)le narrow
area wherein we feel constrained to differ from them and the reasons
E why. Prolonged delay in the execution of a death sentence is
unqestionably an important consideration for determining whether
the sentence should be allowed to be .executed. But, according to
us, no hard and fast rule can be laid down as our learned Brethren
have done that "delay exceeding two years in the execution of a
F sentence of death should be considered sufficient to entitle the person
under sentence of death to invoke Article 21 and demand the quash-
ing of the sentence of death". This period of two years purports to
have been fixed in Vatheeswaran after making "all reasonable allo·
wance for the time necessary for appeal and consideration of
reprieve". With great respect, we find it impossible to agree with
G this part of the judgment. One has only to turn to the statistics of
the disposal of cases in High Court and the Supreme Court to
appreciate that a period far exceeding two years is generally taken by
those Courts together for the disposal of matters involving even the
death sentence. Very often, four or five years ·elapse between the
H imposition of death sentence by the Sessions Court and the disposal
of the Special Leave Petition or an Appeal by the Supreme Court
in that ·matter. This is apart from the time which the President or
.-
the Governor, as the ca$e may be, takes to c.onsider ~titio11s filed

•
smrn. SINGH v. PUNJAB .(Ch1J11drachud, C.J.) 595

under Article 72 or Art. 161 of the Constitution or the time which
the Government takes to disp9se of applications filed under sections A
432 and 433 of the Code of Criminal Procedure. It has been the
sad experience of this Court that no priority whatsoever. is given by
the Government of India to the disposal of petitions filed to the
President under Article 72 of ~he Constitution. Frequent reminders
are issued by this Court for an expeditious disposal of such petiti- B
ons but even then the petitions remain undjsposed of for a long •
time. · Seeing that the petition for reprieve or commutation is not
being attended to and no reason is forthcoming as to why the delay
is caused, this Court is driven to commute the death sentence into
life imprisonment out of a sheer sense of helplessness and frustra•
tion. Therefore, with respect, the fixation of the time limit of two C
years does not seem to us to accord with the common experience of
the time normally consumed by the litigative process and the proceed-
ings before the executive.

Apart from the fact that the rule of two years runs in the teeth D
of common experience as regards the time generally occupied by
proceedings in th.e High Court, the Supreme Court and before the
executive authorities, we are of the opinion that no absoulte or
unqualified rule can be laid down that in every case in which there
is a long delay in .the execution of a death sentence, the ·sentence
must ·be substituted by the sentence of life imprisonment. There are E
several other factors which must be taken into account while consi-
dering the question as to whether the death sentence should be vaca-
ted. A convict is undoubtedly entitled to pursue all remedies lawfully
open to him to get rid of the sentence of death imposed upon him
and indeed, there is no one, be he blind, lame, starving or suffering 'F
from a terminal illness, who does not want to live. The Vinoba
· Bhaves, who undertake the '~Prayopaveshana" do not belong to the
world of ordinary mortals. Therefore, it is understandable that a
convict sentenced to death will take recourse to every remedy which
is available to him nuder the law, to ask for the commutation of his
sentence, even after the death sentence is finally confirmed by this G
Court by dismissing his Special Leave Petition or Appeal. But, it is,
at least relevant to consider whether the delay in the execution of the

~ . -'death sentence is attributable to the fact that he has resorted to a
series of untenable proceedings which have the effect of defeating the
ends of justice. It is not uncommon that a series of review petitions H
and writ petitions are filed in this Court. to challenge judgments and
orders which have assumed finality, without any seeming justification.
Stay orders are obtained in those proceedings and then, at the end
596 SUPREME COURT REPORTS . (1983i 2 s.c.a.

of it all, comes the argume11t that there has been prolonged delay in
A implementing the judgment or order. We believe that the Court
called upon to vacate a death sentence· on the ground of delay caused
in executing that sentence must find why the delay was cansed and
· who is responsible for it. If this is not done, the law laid down by
this Court will become an object of ridicule by permitting a person
B . to defeat it by resorting to frivolous' proceedings in order to delay its
implementation And then, th" rule of two years will become a handy
tool for defeating justice. The death sentence should not, as far as
possible, be imposed. But, in that rare and exceptional class of
cases wherein that sentence is upheld by this Court, the judgment or
order of this Court ought not to be allowed to be defeated by apply-
.C ing any rule of thumb.

Finally, and that is no Jess important, the nature of the offence,
the diverse circumstances attendant upon it, its impact upon the
contemporary society and the question whether the motivation and
D pattern of the crime are such as are likely to lead to its repetition,
if the death sentence is vacated, are matters which must enter into the
verdict as to whether the sentence should be vacated for the reason
that its execution is delayed. The substitution of the death sentence by
a sentence of life imprisonment cannot follow by the application of the
two years' formula, as a matter of "quod erat dcmonstfandum".
E
Jn the case before us, the sentence of death was imposed upon
the petitioners by the learned Sessions Judge, Sangrur, on November"
~ .
26, 1977. It was upheld by the High Court on July 18, 1978. This
Court dismissed the Special Leave Petition filed by the petitioners on
F March 5, 1979. The matter is pending in this Court since then in
one form or another, by reason of some proceeding or the other. The
last of the writ Petitions filed by the petitioners was dismissed by
this Court.on August.24, 1981. We do not know why the sentence
..
imposed upon the petitioners has not been executed for more than a
year and half. The Government of Punjab must explain that delay.
G We are of the opinion that, in the instant case, the sentence of death
imposed upon the petitioners by the Sessions Court and which was
upheld by the High Court, and this Court, cannot be vacated merely
for the reason that there has been a long delay in the execution
of that sentence.
H •
On the date when these Writ Petitions came before us, we
asked the learned counsel for the petitioners to argue upon the
Sli.ER SINGH v. PUNJAB (Chandrachud, C.J.) 597
• reasons why, apart from the dealy caused in executing the death
sentence, it would be unjust and unfair to execute that sentence at A
this point of time. Every case has to be decided upon its own facts
and we propose to decide this case on its facts. After hearing the
petitioners' counsel, we will consider the question whether the inte-.
rests of justice require that the death sentence imposed upon the
petitioners should not be executed and whether, in the circumstances
of the case, it would be unjust and unfair to execute that sentence B
·now.

We must take this opportunity to impress upon the Govern·
ment of India and the State Governments that petitions filed under
Articles 72 and !'61 of the Constitution or under sections 432 and c
433 of the Criminal Procedure Code must be disposed of expediti·
ously. A self-imposed rule should be followed by the executive
authorities rigorously, that every such petition shall be disposed of
within a period of three months from the date on which it is received.
Long and interminable delays in the disposal of these petitions are a
serious hurdle in the dispensation of justice and indeed, such delays D
tend to shake the confidence of the people in the very system of
justice. Several instances can be cited, to which the record of this
Court will bear testimony, in which petitions are pending before the
State Governments and the Government of India for an inexplicably
long period. The latest instance is to be found in Cri. •Writ Petition E
Nos. 345-348 of 1983, from which it would appear that petitions filed
under Art. 161 of the Constitution are pending before the Governor
of Jammu & Kashmir for anything between 5 to 8 years. A pernici·
-ous impression seems to be growing that whatever the courts may
decide, one can always turn to the executive for defeating the verdict
·of the Court by resorting to delaying tactics. Undoubtedly, the F
executive has the power, in appropriate cases, to act under the
aforesaid provisions but, if we may remind, all exercise of power is
preconditioned by the duty to be fair and· quick. Delay defeats
justice.

G
On the question as to whether the death sentence should not ·be
allowed to be executed in this case, we shall pronounce later after
hearing the parties. In the meanwhile, notice will go to the
Government of Punjab.
·• ' \
H
Order accordingly.

H.L.C.