Holding

Undue long delay in execution of a death sentence permits the condemned to approach the Court under Article 32, but the Court will not reopen the original sentencing judgment and may only consider the nature of the delay and surrounding circumstances to decide on commutation, with no fixed period of delay rendering the death sentence inexecutable.

Summary

The petitioners, convicted of murder and sentenced to death, sought commutation to life imprisonment on the ground of an inordinate delay in execution. The Supreme Court examined conflicting precedents on whether a two‑year rule or any fixed period of delay makes a death sentence inexecutable. It held that only the delay occurring after the final judicial verdict (including the period of mercy‑petition disposal) is relevant, and that no fixed time limit can be prescribed; the Court may consider the nature of the delay and surrounding circumstances but cannot reopen the original sentencing judgment. Consequently, the Court partially allowed one writ petition, substituting the death sentence with life imprisonment, while dismissing the others. The judgment also clarified that Article 20(1) does not bar continued detention of a death‑sentenced prisoner, and that larger benches may overrule smaller ones.

Issues considered

Whether prolonged delay in execution of a death sentence renders it unconstitutional and entitles the condemned to commutation to life imprisonment
From which point the delay for commutation purposes should be computed
Whether Article 20(1) double jeopardy applies to a prisoner kept in custody awaiting execution
Whether Article 21's requirement of fair, just and reasonable procedure extends to the period of delay in execution
Whether the Supreme Court can revisit or overturn the conclusions of the court that imposed the death sentence
Whether delays in the disposal of mercy petitions can be taken into account for commutation
Whether a larger bench can overrule the view of a smaller bench in this context

Legislation cited

Code of Criminal Procedure, 1973s. Section 354(3), s. Section 366(2), s. Section 413, s. Section 414
Constitution of Indias. Article 141, s. Article 142, s. Article 144, s. Article 145, s. Article 161, s. Article 20(1), s. Article 21, s. Article 32, s. Article 72
Indian Penal Code, 1860s. Section 120-B, s. Section 121, s. Section 132, s. Section 302, s. Section 307, s. Section 396

Subjects

death penaltycommutationdelay in executionArticle 32Article 21Article 20(1)mercy petitioncapital punishmentprocedural fairnessdouble jeopardySupreme Court jurisdictionlarger bench overrule

Judgment

SMT. TRIVENIBEN & -ORS. A
v.
STATE OF GUJARAT & ORS.

FEBRUARY 7, 1989

[G.L. OZA, MURARI MOHON DUTT, K.N. SINGH, B
K.JAGANNATHA SHETTY AND L.M. SHARMA, JJ.]

Constitution of India, 1950: Article 32-Death sentence-Undue
long delay in execution-When justifies commutation to life
imprisonment-Whether Supreme Court can reopen the conclusions
reached by the court sentencing the prisoner-Earlier judgment of c
Court-Whether can be challenged on ground of violation of funda-
mental rights-Mercy petitions~Expeditious disposal of-Necessity
for.

Art. 20( 1)-Death sentence-Securing convict in prison until
execution of sentence-Whether amounts to double jeopardy. D

Art. 21-'-Person sentenced to death-Inordinate delay in execu-
tion of sentence-Whether amounts to mental torture-Necessity for
observance ofprocedural fairness emphasised.

Arts. 141-145-Larger Bench of the Court-Whether entitled to E
overrule view of a smaller Bench.

Arts. 72, 161~Mercy Petitions-Expeditious disposal of-Neces-
sity for. .

t' DelayCriminal Procedure Code, 1973: Sections 413, 414 and 354(3)- F
in. execution of death sentence-Whether can be a ground for
commutation to life imprisonmeµt-Time taken upto final verdict-
Whether to be excluded in considering delay in execution of death
sentence-Whether any time limit can be prescribed for execution of
death sentence-Good conduct of prisoner after final verdict-Whether
can be ground for commutation. G

Indian Penal Code, 1860-Sections 120-B, 121, 132, 302, 307 &
396--Death sentence-Whether constitutionally valid.

The accused were convicted under s. 302 I.P .C. and sentenced to·
death by the trial court. The High Court confirmed their conviction and H
509
510 SUPREME COURT REPORTS [1989) 1 S.C.R.

A sentence. This Court dismissed their special leave petitions/appeals and
subsequenfreview petitions. Their mercy petitions to the President and/
or Governor were also rejected. Therefore, they approached this Court
by way of Writ Petitions for setting aside the death sentence and sub-
stituting it by a sentence of life imprisonment on the ground of pro-
longed delay in the execution. They contended that the dehumanising
B factor of prolonged delay with the mental torture in confinement in jail
had rendered the execution unconstitutional.

In view of the conflicting decisions of this Court in T. V.
Vaitheeswaran v. State of Tamil Nadu, [1983) 2 SCR 348 and Sher Singh &
Ors. v. The State of Punjab, [19831 2 SCR 582 and observations in Javed
Ahmed Abdul Hamid Pawala v. State of Maharashtra, [19851 2 SCR 8
c on the question of delay, the writ petitions were referred to a tive judges
Bench.

While a Bench of two Judges held in· Vaitheeswaran's case that
two years delay in execution of the sentence after the judgment of the
D trial court would entitle the condemned prisoner to ask for commuta-
tion of his sentence of death to imprisonment for life, a three Judges'
Bench held, in Sher Singh' s case, that delay alone is not good enough for
commutation and two year's rule could not be laid down in the cases of
delay and that the Court in the context of the nature of the offence and
delay, could consider the question of commutation of death sentence. In
E Javed's case this Court observed that where the condemned man had
suffered more than two years and nine months and was repenting and
there was nothing adverse against him in the jail records, this period of
two years and nine months with the sentence of death heavily weighing
on his mind, would entitle him for commutation of sentence of death I
into imprisonment for life.
F
The questions for consideration in these cases were: (a) whether
prolonged delay in execution of the sentence of death rendered it
"'*
inexecutable and entitled the accused to demand the alternate sentence
of imprisonment for life, (b) what should be the starting point for
computing this delay, (c) what were the rights of a condemned prisoner
G who had been sentenced to death but not executed, and (d) what could
be t.he circumstances which should be considered along with the time
that had been taken before the sentence is executed.

On October 11, 1988 this Court dismissed all the writ petitions,
except Writ Petition No. 1566of1985, which was partly allowed and the
H sentence of death awarded to the accused was substituted by the sen-
SMT. TRIVENIBEN v. STATE OF GUJARAT 511
tence of imprisonment. Over-ruling the decision in Vaitheeswaran's A
case that two years' delay would make the sentence of death inexecut-
able, this Court held that undue long delay in execution of the sentence
of death would entitle the condemned person to approach this Court
under Article 32 but this Court would only examine the nature of delay
caused and circumstances ensued after sent.ence was t'lnally cont'intted
by the judicial process and would have no jurisdiction to reopen the · B
conclusions reached by the Court while finally maintaining the sentence
of death, that this Court, might consider the question of inordinate
delay in the light of all circumstances of the case to decide whether the
execution of the sentence should be carried out or should be altered into
imprisonment for life and that no fixed period of delay would be held to
make the sentence of death inexecutable. Reasons for the judgment C
were to follow.

Gi'Ving. the reasons for the Judgment,

HELD: .Majority: Oza, Murari Mohon Dutt, Singh and Shanna JJ.
D
Per Oza, J:

1.1 The delay which could be con81dered while considering the
question of commutation of sentence of death Into one of life Imprison-
ment could only be from .the date the judgment by the apex Conrt is
pronounced i.e when the judicial process has come to an end. [528E-F] E

1.2 The condemned prisoner knows that the judgment pronoun-
ced by t.he Sessions Court in the case of capital punishment is not final
unless confirmed by the High Court. All the delay upto the final judicial
process is taken care of while the judgment is finally pronounced, and
in a number of cases the time that has elapsed from the date of offence F
till the final decision, has weighed with the courts and lesser sentence
awarded only onthis account. [S26E, H; 527 A]

State of Uttar Pradesh v. Lalla Singh and others, [1978] I SCC
142; Sadhu Singh v. State of U.P., AIR 1978 SC 1506; State of U.P. v.
Sahai, AIR 1981 SC 1442 and Joseph Peter v. State of Goa, Daman & G
.> Diu, [1977] 3 SCR 771, referred to.

Piare Dusadh and others v. The King Emperor, (1944] Federal
Court Reports 61, referred to.

1.3 Practically, in all the High Courts a confirmation case i.e. a H
512 . SUPREME COURT REPORTS I1989] 1 S.C.R.
case where the sentence of death is awarded by the Sessions Court and is
A
pending in the High Court for confirmation in the High Court a time
bound programme is provided in the rules and, except on some rare
occasions, the High Court has disposed of a confirmation case between
six months to one year. At the Sessions level also, the normal procedure
of the sessions trial is that it is taken up day today and it is expected that
B such a sessions case should be given· top priority and it is expected that
such trials must continue day to day till it is concluded. Even in this
Court, although there is no specific rule, normally these matters are

c
given top priority, and ordinarily, it is expected that these matters
will be given top priority and shall be heard and disposed of as expedi-
tiously as possible. Therefore, as long as the matter is pending in any
Court before any final adjudication, even the person who has been
-r
condemned or sentenced to death has a ray of hope. Therefore, it could
not be contended that he suffers that mental torture which a person
suffers when he knows that he is to be hanged but waits for the Dooms
day. l527G-H; 528C-E]

D 1.4 After the matter is finally decided judicially, it is open to the
person to approach the President or the Governor as the case may be
with a mercy petition. It is no doubt true that sometimes such mercy
petition and review petitions are filed repeatedly causing delay, but a
legitimate remedy if available in law, a person is entitled to seek it and it
would, therefore, be proper that if there has been undue and prolonged
E delay, that alone will be a matter attracting the jurisdiction of this
Court, to consider the question of executio!I of the sentence. However,
while considering the question of delay after the final verdict is pro-
nounced, the time spent on petitions for review and repeated mercy
petitions at the instance of convicted person himself shall not be
considered. l528F, G; 529A]
F
1.5 The only delay which would be material for consideration will
be the delay in disposal of the mercy petitions or delays occurring at the
instance of the Executive. l529B]

1.6 When petitions under Art. 72 or 161 are received hy the
G authorities concerned, it is expected that these petitions shall be dis-
posed of expeditiously. [529C]

T. V. Vaitheeswaran v. State of Tamil Nadu, 11983] 2 SCR 348,
over-ruled.

H Sher Singh & Others v. The State of Punjab, 119831 2 SCR 582,
affirmed.
SMT. TRIVENIBEN v. STATE OF GUJARAT 513

Javed Ahmed Abdul Hamid Pawa/a v. State of Maharashtra,
A
[1985] 2 SCR 8, referred to.

2.1 A judgment of the Court can never be challenged under
Art. 14 or 21 and, therefore, the judgment of the court awarding
the sentence of death is not open to challenge as violating Art. 14
or 21. [531G-H] B

Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and
Anr., [1966] 3 SCR 744 and A.R. Antulay v. R.S. Nayak and another,
[1988] 2 sec 602, relied on.

2.2 The only jurisdiction which could be sought to be exercised by
a prisoner (or infringement of his rights can be to challenge the subse-
c
quent events after the final judicial verdict is pronounced and it is
because of this that on the ground of long or inordinate delay a con-
demned prisoner could approach this Court. [532A-B]

2.3 It will not be open to this Court in exercise of jurisdiction D
under Art. 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 circum-
stances could be held to be sufficient for coming to· a conclusion that
execution of the sentence of death will nilt be just and proper. The E
nature of the offence, circumstances in which the offence was commit-
ted will have to be taken as found by the competent court while finally
passing the verdict. It may also be open to -the court to examine or
co__nsider any circumstances after the final verdict was pronounced if it
is considered relevant. [532B-D J
F
2.4 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 sentence could be altered on that ground
also. [5320]

3.1 Before 1955, sentence of death was the rule, the alternative G
sentence had to be explained by reasons. Thereafter, it was left to the
discretion of the court to inflict either of the sentences and ultimately in
the 1973 Code normal sentence is imprisonment for life except that for
the special reasons to be recorded sentence of death conld be passed.
This indicates a trend against sentence of death but this coupled with
the decisions wherein sentence of death has been accepted as constitu- H
514 SUPREME COURT REPORTS (1989] 1 S.C.R.

A tional, show that although there is a shift from sentence of death to lesser j
sentence, there is a clear intention of maintaining this sentence to meet
the ends of justice in appropriate cases. Therefore, in spite of the diver-
gent trends in the various parts of the world there is a consistent
thought of maintaining the sentence of death on the statute book for
B some offences and in certain circumstances where it may be thought
necessary to award this extreme penally. It is awarded in the rarest of 4
rare cases and this is the accepted position oflaw. (5248-D]

Bachan Singh etc. etc. v. State of Punjab etc. etc., (1983] 1 SCR
145 and Machhi Singh and others v. State of Punjab, (1983] 3 SCC 470 -~
referred to.
c
3.2 The circumstances in which the extreme penalty should be
inflicted cannot be enumerated in view of complex situation in society
and the possibilities in which the offence could be committed and the
Legislature was, therefore, right in leaving it to the discretion of the
judicial decision as to what should be the sentence In particular
0
circumstances of the case. But the Legislature has put a further rider
that when the extreme penalty is inflicted it is necessary for the court to
give special reasons thereof. [525H; 526A-B]

4. The prisoner, who is sentenced and kept ill jail custody under a
warrant under s. 366(2) of the Criminal Procedure Code Is neither
E
suffering rigorous imprisonment nor simple imprisonment. In sub-
stance, he is in jail so that he is kept safe and protected.with the purpose
that he may be available for execution of the sentence which has been
awarded. Hence this will not amount to double jeopardy. (53 lE l

The life of the condemned prisoner in jail awaiting execution of
F
sentence must be such which is not like a prisoner suffering the sen-
tence, and it is essential that he must be kept safe. [531F]
..
Sunil Batra v. Delhi Administration, (1979] 1 SCR 392 referred
to.
G
Per Jagannatha Shetty, J (Concurring):

5. Article 21 demands that any procedure which takes away the
life and liberty of persons must be reasonable, just and fair. This pro·
cedural fairness is required to be observed at every stage and till the last
H breath of the life. [546C] ·
SMT. TRIVENIBEN v. STATE OF GUJARAT 515

\ ;-· · Maneka Gandhiv. Union of India, [1978] 1SCC248; The State of A
West Bengal v. Anwar Ali, [1952] SCR 284; Bachan Singh v. Slate of

\l
·1 Punjab, [1980] 2 SCC 684; Mithu v. State of Punjab, [1983] 2 SCC 277
and Sher Singh v. State of Punjab, [1983]2 SCC 582, relied on.

6.1 The delay which is sought to be relied upon by the accused B
consists of two parts. The first part covers the time taken in the judicial
proceedings. It is the time that the parties have spent for trial,
; appeal, further appeal and review. The second part takes into fold
l t the time utilized by the executive in the exercise of its prerogative
clemency. [547H; 548A-B]
~i.
6.2 The time taken in the judicial proceedings by way of.trial and c
appeal was for the benefit of the accused. It was intended to ensure a
~ fair trial to the accused and to avoid hurry-up justice. The time is spent
in the public interest for proper administration of justice. If there is
inordinllte delay in disposal of the case, the trial court while sentencing
or the appellate court while disposing of the appeal may consider D
the delay and the cause thereof along with other circumstances. The
court before sentencing is bound to hear the parties and take into
account every circumstance for and agBinst the accused. H the court
awards death sentence, notwithstanding the delay in disposal of the
Jl case, there cannot be a second look at the sentence, save by way of
review. [548F-H] E

6.3 There cannot be a second trial on the validity of sentence
, based on Art. 21. The execution which is impugned is execution of a
judgment and not apart from judgment. H the judgment with the sen-
tence awarded is valid and binding, it falls to be executed in accordance
with law. Therefore, if the delay in disposal of the case is not a mitigat-
~- ing circumstan.ie for lesser sentence, it would be wholly inappropriate
F

to fall back upon the same delay to impeach the i:xecution. [548H; 549A-B]

6.4 If the delay in passing the sentence cannot render the execu-
tion unconstitutional, the delay subsequent thereof cannot also render it
unconstitutional. Much less any fixed period of delay could be held to G
make the sentence inexecutable. It would be arbitrary to fix any period
of limitation for execution on the ground that it would be a denial of
>'
fairness in proceedure under Article 21. [549B-C)
.I
T. V. Vaitheeswaran v. State of Tamil Nadu, [1983) 2 SCR 348,
.
over-ruled. H
516 SUPREME COURT REPORTS [1989] 1 S.C.R.

6.5 The time taken by the executive for disposal of mercy peti- ~
A
lions may depend upon the nature of the case and the scope of enquiry
to be made. It may also depend upon the number of mercy petitions
submitted by or on behalf of the accused. The Court, therefore, cannot
prescribe a time limit for disposal of even mercy petitions. However,
Article 21 is relevant at all stages, and the principle that speedy trial is a
B part of one's fundamental right to life and liberty is no less important .J,
for disposal of mercy petition. [549E-F]

Hussainara Khatoon v. The State of Bihar, [1979] 3 SCR 169 and
1930 1 SCC 81 and Kadra Pahadiya v. State of Bihar, [1981] 3 SCC 671 '\' ~.
and 1983 2 sec 104 relied on. '--.:
c 6.6 It has been universally recognised that a condemned person
has to suffer a degree of mental torture even though there is no physical
mistreatment and no primitive torture. He may be provided with
amenities of ordinary inmates in the prison. But nobody could succeed
in giving him peace of mind. [549G-H]
D
Sunil Batra v. Delhi Administration, I1978J 4 sec 494 referred
to.

As between funeral fire and mental worry, it is the latter which is
more devastating, for, funeral fire burns only the dead body while the
E mental worry burns the living one. This mental tortment may become
acute when the judicial verdict is finally set against the accused. Earlier
to it, there was every reason for him to hope for acquittal. That hope is
,. •· extinguished after the final verdict. If, therefore, there is inordinate
delay in execution, the condemned prisoner is entitled .to come to the

F
court requesting to examine whether, it is just and fair to allow tbe
sentence of death to be executed. [SSOC] ~
6. 7 The jurisdiction of the Court at this stage, is extremely
limited. The Court, while examining the matter, 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
G for disposal of any petition filed by or on behalf of the accused either
under Art. 226 or under Art. 32 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 cond11ct and whether
the delay was for no reason at all. Though the inordinate delay may be a
H significant factor, but that by itself cannot render the execution uncon-
SMT. TRIVENIBEN ,._ STATE OF GUJARAT 517

"' stitutional. Nor it can be divorced from the dastardly and diabolical A
circumstances of the crime itself. [550D-G I

T. V. Vaitheeswaran v. State of Tamil Nadlf, [1983] 2 SCR 348
over-ruled.

Sher Singh v. State of Punjab, [1983] 2 SCR 582 affirmed. B

Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra,
[1985] 2 SCR 8; Vivian Rodrick v. .The State of West Bengal, [1971) 1
SCR 468; State of U.P. v. Paras Nath Singh & Ors:, [1973] 3 SCC 647;
Bihar v. Pashupati Singh, [1974] 3 SCC 376; State of U.P. v. Suresh,
[1981] 3 SCC 635 at 643; State of U.P. v. Sahai, [1982) 1SCC352; Ram
Adhar v. State uf U.P., [1979) 3 SCC 774 at 777; State of U.P. v. Lalla c
~· Singh & Ors., [1978] 1SCC142; Sadhu Singh v. State of U.P., [1978] 4
SCC 428; Nachhittar Singh v. State of Punjab, [1975) 3 SCC 266;
Maghar Singh v. State of Punjab, [1975] 1 SCC 234; Lajar Mashi v.
State of U.P., [1976] 1 SCC 806; Hussainara Khatoon v. The State of
Bihar, [1979] 3 SCR 169 and 1980 1 SCC 81 and Kadra Pahadiya v.. D
State of Bihar, [1981] 3 SCC 671and1983 2 SCC 104 referred to.

6.8 If the Court wants to have a look at the grievance as to delay
then there should not be any delay either in listing or in disposal of the
matter. The person who complaints about the delay in the execution
should not be put to further delay. The matter, therefore, must be E
expeditiously and on top priority basis, disposed of. [550D-E]
•
6.9 The contention that the accused should not be executed if he
has since improved is unavailable, since it seeks to substitute a new
~ procedure which the Code does not provide for. [551B]
F
7. The judicial verdict pronounced by court in relation to a
matter cannot be challenged on the ground that it violates one's funda·
mental right. The judgment of a court_ cannot be said to affect the
fundamental rights of citizens. [534A-B I

Naresh Sridhar Mirajkar, [1963] 3 SCR 744 relied on. G

8. It is now obligatory for the court to state reasons for the sen-
tence awarded for the offence of murder. The court cannot award death
sentence without giving special reasons and only in exceptional cases
and not in the usual run of murders. There are just six offences carry·
ing death penalty and that too as an alternate sentence. [543E-F] H
518 SUPREME COURT REPORTS [1989] 1 S.C.R.
A
9. The criminal law always keeps pace with the development of
society. The punishment which meets the unanimous approval iit one
generation, may rank as the most reprehensible form of cruelty in the
next. The representatives of the people are cognizant of the contem-
porary social needs. The legislative amendments brought about from
B time to time are indicative of their awareness. The penal law cannot
·remain isolated and untouched. It will be profoundly influenced by
philosophy prevailing. Time may reach for the representatives of people
to consider that death penalty even as ari alternate sentence for murder
is uncalled for and unnecessary. There is nothing in our Constitution to pre-
clude them from deleting that alternate sentence. [540C; 542H; 543H; 544A]

c Bachan Singh v. State of Punjab, [1980] 2 SCC 684 and Mithu v.
State of Punjab, [1983] 2 SCC 277, referred to.

10. The practice prevailing over the years had been that a larger
bench straightaway considers the correctness of and, if necessary, over-
D rules the view of a smaller bench. This practice has been held to be the
crystallised rule of law in a recent decision by a special bench of seven
judges of this Conrt. This must be regarded as a tinal seal to the con-
troversy, and it is now not open to any one to contend that a bench of
two judges cannot be overruled by a bench of three judges. [536H; 537E]

E A.R. Antulay v. R.S. Na yak, AIR 1988 SC 1531, followed.

CRIMINAL ORIGINAL JURISDICTION: Writ Petition ,
(CRL) Nos. 1566/86, 186/85, 191/86, 338/88 & 649/87.

(Under Article 32 of the Constitution of India.)
F
R.K. Jain, Rangarajan, Mrs. Urmila Sirur, Mohd. Naseem,
Rakesh K. Khanna, P.K. Jain, Mukul Mudgal, Sanjay Parikh, B.P.
Singh, P. Krishna Rao, B.K. Prasad, Ms. Malini Poduwal, Lalit Kumar
Gupta, Manoj Swarup, Harish Salve, Rajiv Garg, Rajiv Shakdhar,
N.D. Garg, L.K. Gupta (Amicus-curiae), M. Veerappa and Dalveer
G Bhandari for the Petitioners.

K. Parasaran, Attorney General, B. Datta, Additional Solicitor i
General, V.C. Mahajan, T.U. Mehta, Anand Prakash, Ms. A Subha-
shini, A.K. Srivastava, S.K. Bhattacharya, M.N .Shroff, Ms. Sushma
Ralhan. Mahabir Singh, AV. Rangam and R.S. Suri for the
H Respondents.
SMT. TRIVENIBEN v. STATE OF GUJARAT [OZA, J.[ 519

A.K. Goel, Ajit Pudissery and Mrs . Jayamala Singh for the
A
Interveners.

The following Judgments of the Court were delivered:

OZA, J. These matters came up before us because of the conflict
in the two decisions of this Court: i) T. V. Vatheeswaran v. State of B
Tamil Nadu, [1983) 2 SCR 348; Sher Singh & Others v. The State of
Punjab, [ 1983 I 2 SCR 582 and observations in the case of Javed Ahmed
Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8. In
-~-I Vatheeswaran's case, a Bench of two Judges bf this Court held that two
years delay in execution of the sentence after the judgment of the trial
court will entitle the condemned prisoner to ask for commutation of
his sentence of death to imprisonment for life. The Court observed c
that:

· "Making all reasonable allowance for the. time necessary
for appeal and consideration of reprieve, we think that
delay exceeding two years in the execution of a sentence of D
death should be considered sufficient to entitle the person
under sentence of death to invoke Art. 21 and demand the
quashing of the sentence of death."

In Sher Singh's case which was a· decision of a three Judges·
Bench it was held that a condemned prisoner has a right of fair proce- E
dure at all stages, trial, sentence and incarceration but delay alone is
,
not good enough for commutation and two years rule could not be laid
down in cases of delay. It was held that the Court in the context of the
nature of offence and delay could consider the question of commuta-
tion of death sentence. The Court observed:
F
"Apart from the fact that the rule of two years run in the
teeth of common experience as regards the time generally
occupied by proceedings in the High Court, the Supreme
Court and before the executive authorities. We are of the
opinion that no absolute or unqualified rule can be laid
down that in every case in which there is a long delay in the G
execution of a death sentence, the sentence must be sub-
stituted by the sentence of life imprisonment. There are
several other factors which must be taken into account
while considering the question as to whether the death
sentence should be vacated. A convict is undoubtedly en-
titled to pursue all remedies lawfully open to him to get rid H
.,

520 SUPREME COURT REPORTS 11989] I S.C.R.

of the sentence of death imposed upon him and indeed,
A •.
there is no one, be he blind, lame, starving or• suffering
from a terminal illness, who does not want to live."

It was further observed:

B "Finally, and that is no less 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 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
·t-
c its execution is delayed. The substitution of the death sen-
tence by a sentence of life imprisonment cannot follow by ~
the application of the two years' formula, as a matter of
"quod erat demonstrandum".

D In Javed's case, it was observed that the condemned man who
had suffered more than two years and nine months and was repenting
and there was nothing adverse against him in the jail records, this
period of two years and nine months with the sentence of death heavily
weighing on his mind will entitle him for commutation of sentence of .Jf
death into imprisonment for life. It is because of this controversy that
E the matter was referred to a five-Judges' Bench and hence it is before
us.
,
Learned counsel for the petitioners at length has gone into the '
sociological, humane and other aspects in which the question of sen-

F
tence of death has been examined in various decisions and by various
authors. It is however not disputed that in Bachan Singh etc. etc. v. ·-~
State of Punjab etc. etc., I1983] I SCR 145 constitutionality of sentence
of death has been upheld by this Court. Learned counsel has at length
referred to the opinion of Hon. Mr. Justice P.N. Bhagwati, as he then
was, which is the minority opinion in Bachan Singh's case. In his
opinion Justice P.N. Bhagwati has conducted a detailed research and
G has considered the material about the various aspects of sentence of
death. Learned Attorney General appearing for the respondents also l
referred to some portions of the judgment but contended that
howsoever condemned the sentence may be but its constitutional
validity having been accepted by this Court all this study about looking
at it from various angles is not of much consequence. He also con-
H tended that the opinion has been drifting and the statistics reveal that
SMT. TRIVENIBEN v. STATE OF GUJARAT [OZA, J.[ 521

at one time there was a trend towards abolition of death sentence and
A
then a reverse trend started and therefore all this, so far as the present
case is concerned, is not necessary. One of the contentions advanced
by learned· connsel for the petitioners was that apart from all other
considerations it is clear that this is a sentence which if executed is not
reversible and even if later on something so glaring is detected which
will render the ultimate conclusion to be erroneous the person con- B
victed and executed could not be brought back to life and it was on this
basis that it was contended that although the law provides for the
sentence and it has been held to be constitutional but still the Courts
should be slow in inflicting the sentence and in fact it was contended
that courts are in fact slow in awarding the sentenc_e. In Bachan Singh's
case, it was observed:
c
"To sum up, the question whether or not death penalty
serves any penological purpose is a difficult, complex and
intractable issue. It has evoked strong, divergent views.
' For the purpose of testing the constitutionality of the
impugned provision as to death _penalty in Section 320, D
Penal Code, on the ground of reasonableness in the light of
Articles 19 and 21 of the Constitution, it is not necessary to
express any categorical opinion, one way or the other, as
to which of these two antithetical views, held by the
Abolitionists and Retentionists, is correct. It is sufficient to
say that the very fact that persons of reason, learning and E
light are rationally and deeply divided in their opinion on
this issue, is a ground among others, for rejecting the
petitioners' argument that retention of the death penalty in
the impugned provisions, is totally devoid of reason and
purpose. If, notwithstanding the view of the Abolitionists
to the contrary, a very large segment of people the world F
over, including sociologists, legislators, jurists, judges and
administrators still firmly believe in the worth and necessity
of capital punishment for the protection of society, if in the
perspective of prexailing crime conditions in India, con-
temporary public opinion channalised through the people's
representatives in Parliament, has repeatedly in the last G
three decades, rejected all attempts, including the one
made recently, to abolish or specifically restrict the area of
death penalty, if death penalty is still a recognised legal
sanction for murder or some types of murder in most of the
civilised countries in the world, if tl:e framers of the Indian
Constitution were fully aware of the existence of death H
522 SUPREME COURT REPORTS (19891 1 S.C.R.

penalty as punishment for murder, under the Indian Penal
A
Code, if the 35th Report and subsequent Reports of the
Law Commission suggesting retention of death penalty,
and recommending revision of the Criminal Procedure
Code and the insertion of the new sections 235(2) and
354(3) in that Code providing for pre-sentence hearing and
B sentencing procedure on conviction for murder another
capital offences were before '.he Parliament and presum-
ably considered by it when in 1972-73, it took up revision of
the Code of 1898, and replaced it by the Code of Criminal
Procedure, 1973, it cannot be said that the provisions of
death penalty as an alternative punishment for murder, in
section 302, Penal Code, is unreasonable and not in public
c interest. Therefore, the impugned provision in section 302,
violates neither the letter nor the ethos of Article 19."

We are in entire agreement with the view expressed above.

D It is not necessary to go into the jurisprudential theories of
punishment deterrent or retributive in view of what has been laid down
in Bachan Singh's case, with which' we agiee but the learned counsel at
length submitted that the modern theor~ts of jurisprudence have
given a go-bye to the retributive theory of puni~hment although in
some countries it is recognised on a different principle i.e. to pacify the
E public anger whereas some theorists have tried to put both the theories
together. So far as the deterrent theory of punishment is concerned
even about that doubts have been expressed as regards the real deter-
rent effect of punishment. The absence of deterrrent effect has been
attributed to various causes sometimes long delay itself as public
memory is always short. When the convict is utlimately sentenced and
F executed people have forgotten the offence that he has committed and
on this basis it is sometimes felt that it has lost its importance. In the .
present case we are not very much concerned with alt these questions
except to some extent the question of delay and its effect.

It was also contended that this sentence is a sentence which is
G irreversible thereb,y meaning that if ultimately some mistake in con-
victing and executing the sentence is detected after the sentence is
executed there is no possibility of correction. After alt the criminal
jurisprudence which is in vogue in our system even otherwise elimi-
nates all possibilities of error as benefit of doubt at alt stages goes in
favot,1r of accused. Apart from it there are only a few offences where
H sentence of death is provided and there too the manner in which the
SMT. TRIVEN!BEN '· STATE OF GUJARAT [OZA, J.J 523

~aw has now been changed ultimately the sentence of death is awarded A
in the rarest of rare case. Therefore not much could be made of the
possibility of an error.

The offences in which sentence of death is provided are under
Sections 120-B (in some cases), 121, 132, 302, 307 (in some cases) and
..396. B

The law as it stood before 1955 the Court was expected to give
reasons if it chose not to pass a sentence of death as normally sentence
~of death was the rule and alternative sentence of imprisonment of life
/.could only be given for special reasons. As Section 367 clause (5) in the
Code of Criminal Procedure, 1898 stood: ·
c
"Ifthe accused is convict_ed for an offence punishable with
death,. and the Court sentences him to any punishment
other than death, the Court shall in its judgment state the
reasons why the sentence of death was not passed."
D
Section 367 clause (5) of Cr. P.C. was amended in 1955 and after-the
amendment discretion was left to the courts to give either sentence.

. Section 367 clause (5) after the amendment reads:

"In trials by jury, the Court need not write a judgment, but
the Court of Sessions shall record the heads of the charge E

- to the jury:

Provided that it shall not be necessary to record such
heads of the charge in cases where th~ charge has been
delivered in English and taken down in shorthand."
F
Thus the legislature dropped that part of the sub-clause which made it
necessary for the Court to state reasons for not awarding sentence of
death. Thus after the amendment the legal position was that it was the
discretion of the Court to award either of the sentences.

In the Code of Criminal Procedure 1973 Section 354 clause (3) G
_.)has now been introduced and it has been provided that in all cases of
murder, life imprisonment should be given unless there are special
reasons for giving sentence of death. This provision Sec. 354 clause
(3)reads:

"When the conviction is for an offence punishable with H
524 SUPREME COURT REPORTS [1989] 1 S.C.R.

death or in the alternative with imprisonment for life or7
A
imprisonment of a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence."

It is thus clear that before 1955 sentence of death was the rule, the
B alternative sentence had to be explained by reasons. Thereafter it wa".-1
left to the discretion of the court to inflict either of the sentences and
ultimately in the 1973 Code normal sentence is imprisonment for life
except for the special reasons to be recorded sentence of death could
be passed. It is therefore clear that this indicates a trend against sent--\--
ence of death but this coupled with the decisions ultimately wherein {
sentence of death has been accepted as constitutional go to show that
c although there is a shift from sentence of death to lesser sentence but
there is also a clear intention of maintaining this sentence to meet the7-
ends of justice in appropriate cases. It is therefore clear that in spite of
the divergent trends in the various parts of the World there is consis-
tent thought of maintaining the sentence of death on the statute book
D for some offences and in certain circumstances where it may be
i'
thought necessary to award this extreme penalty. As stated generally
that it is awarded in the rarest of rare cases and in this accepted
!
position of law, in our opinion, it is not necessary to go into the
academic question about sociological and humane aspects of the sen- l!'
tence and detailed examination of the jurisprudential theories.
E
It was also contended though not very seriously that in ultimate
analysis out of the two sentences imprisonment for life or death it has
been left to the discretion of the courts. On the one hand it was
suggested that there are no norms laid down for exercise of discretion ;
but on the other hand it was also admitted that it is very difficult to l~- -.
F down any hard and fast rule and apparently both the sides realised tha7-,
the attempt that was made by this Court in enumerating some of the _.
circumstances but could not lay down all possible circumstances in
which the sentence could be justified. In Machhi Singh and others v.
State of Punjab, [1983] 3 SCC 470 it was observed that:

G "In this background the guidelines indicated in Bachan
Singh's case, will have to be culled out and applied to the l
facts of each individual case where the question of impos-
ing of death sentence arises. The following propositions
emerge from Bachan Singh's case:

H (i) The extreme penalty of death need not be inflicted
SMT. TRIVENIBEN v. STATE OF GUJARAT [OZA, J.] 525

except in gravest cases of extreme culpability.
A
(ii) Before opting for the· death penalty the circumstances
of the 'offender' also require to be taken into consi-
deration along with the circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an B
exception. In other words death sentence must be
imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to
the relevant circumstances of the crime, and provided,
and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exer- C
cised having regard to the nature and circumstaces of
the crime and all the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full D
weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances
before the option is exercised.

In order to apply these guidelines inter alia the following ques-
tions may be asked and answered: E

• (a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate
and calls for a death sentence?
itf~.
, (b) Are the circumstances of the crime such that there is F
no alternative but to impose death sentence even after
according maximum weightage to the mitigating cir-
cumstances which speak in favour of the offender?

If upon taking an overall global view of all the circum-
stances in the light of the aforesaid proposition and taking G
into account the answers to the questions posed herein-
above, the circumstances of the case are such that death
sentence is warranted, the court would proceed to do so."

In ultimate analysis it could not be djsputed and was not seri-
ously disputed that the circumstances in which the extreme penalty H
526 SUPREME COURT REPORTS 11989] 1 S.C.R.
·;
should be inflicted cannot be enumerated in view of complex situation")!
A
in society and the possibilities in which the offence could be committed
and in this context in ultimate analysis it is not doubted that the Legis-
lature therefore was right in leaving it to the discretion of the judicial
decision as to what should be the sentence in particular circumstances
of the case. But the Legislature has put a further rider that when the
B extreme penalty is inflicted it is necessary for the court to give special-;
reasons thereof.

In the matter before us we are mainly concerned with a) delay in
execution of the sentence of death; b) what should be the starting v
point for computing this delay?; c) what are the rights of a condemned/
prisoner who has been sentenced to death but not executed? and '
c d) what could be the circumstances which could be considered along-
with the time that has been taken before the sentence is executed. 1"

The main theme of the arguments· on the basis of delay has been
the inhuman suffering which a condemned prisoner suffers waiting to
D be executed and the mental torture it amounts to and it is in this
background also thai the parties argued at length about the starting
point which should be considered for computing delay in execution of
the sentence. On the one hand according to the petitioners the mental
torture commences when the trial coul\ i.e. the Sessions Court.+
pronounces the judgment and awards capital punishment. However,
E learned counsel also conceded that even the condemned prisoner
knows that the judgment pronounced by the Sessions Court in the case
of capital punishment is not final unless confirmed by the High Court.
Mainly therefore it was contended that the real mental torture comm-
-
ences after the death sentence is confirmed by the High Court and
therefore to consider the question of delay the time should be coml
F puled from the date of the High Court judgment. On the other hand~
learned Attorney General contended that even if the judgment of
confirmation by the High Court is passed in which capital punishment
is awarded, invariably comes to this Court and this Court ordinarily
grants leave and appeals are heard at length and it was therefore
contended that the delay in execution of the sentence really could be
G considered after the pronouncement of the final verdict by this Court
and it is only after the final verdict is pronounced that it could be said !
that the judicial process has concluded. It is no doubt true that some-
times in these procedures some time is taken and sometimes even long -l~

time is spent. May be for unavoidable circumstances and sometimes
even at the instance of the accused but it was contended and rightly so
H that all this delay upto the final judicial process is taken care of while
SMT. TRIVENIBEN v. STATE OF GUJARAT [OZA, J.[ 527

the judgment is finally pronounced and it could not be doubted that in
A
number of cases considering the time that has elapsed from the date of
the offence till the final decision has weighed with the courts and lesser
sentence awarded only on this account.

As early as in 1944, the Federal Court in Piare Dusadh and others
.. v. The King Emperor, I 19441 Federal Court Reports 61 observed:

"It is true that death sentences were imposed in these cases
B

,
-+
several months ago, that the appellants have been lying
ever since under the 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 constitution
of the courts before which they were tried and of the vali-
dity of the sentences themselves. We do not doubt that this
c
court has power, where there has been inordinate delay in
executing death sentences in cases which come before it, to
allow the appeal in so far as death sentence is concerned
and subsitute a sentence of transportation for life on D
account of the time factor alone, however right the death
sentence was at the time when it was originally imposed."

Simil~rly in State of Uttar Pradesh v. Lalla Singh and others, I 19781 I
SCC 142; Sadhu Singh v. State of U.P., AIR 1978 SC 1506; State of
U.P. v. Sahai, AIR 1981 SC 1442 and Joseph Peter v. State of Goa, E
Daman & Diu, 119771 3 SCR 771 while finally deciding the matter the
courts have taken notice of the delay that has occurred in the judicial
process.

It was contended that Article 21 contemplates not only a fair
~ procedure but also expeditious procedure and in this context it was F
' contended that observations be made so that judicial process also is
concluded as expeditiously as possible. Learned Attorney General has
filed compilation of rules of various High Courts and it is not disputed
that practically in all the High Courts, a confirmation case where the
sentence of death is awarded by the Sessions Court and the case is
pending in the High Court for confirmation time bound programme is G
)
provided in the rules and it could be said that excep·t on some rare
occasion the High Court has disposed of a confirmatio11 case between
six months to one year and therefore it could not be said that there is
no procedure provided for expeditious disposal of these cases. At the
Sessions level also the normal procedure of the Sessions trial is that it
is taken up day to day although after coming into force of the Code of H
528 SUPREME COURT REPORTS [1989] 1 S.C.R.

A Criminal Procedure in 1973 where the number of offences triable by ,,
the Sessions Court have been increased but there is sometimes a slight
departure from the normal rule which is the cause to some extent for
some slackness in the Sessions trial but attempt is always made and it is
expected that Sessions case where offences alleged is one which is
punishable with death should be given top priority and normally it 'is
B given top priority and it is expected that the trials must continue day to
day unless it is concluded. Although it is well-known that sometimes it
is at the instance of the advocates appearing for defence also that
this normal rule is given a go-bye but ordinarily it is expected th.at
these cases must be tried expeditiously and disposed of.

C Even in this Court although there does n8t appear to be a
specific rule but normally these matters are given top priority.
Although it was contended that this reference before us-a Bench of
five-Judges, was listed for hearing after a long interval of time. We do
not know why this reference could not be listed except what is gene-
rally well-known the difficulty of providing a Bench of five Judges but
D ordinarily it is expected that even in this Court the matters where the
capital punishment is involved will be given top priority and shall be
heard of and disposed of as expeditiously as possible but it could not
be doubted that so_Iong as. the matter is pending in any Court before
final adjudication even the person who has been condemned or who
has been sentenced to death has a ray of hope. It therefore could not
E be contended that he suffers that mental torture which a person suffers
when he knows that he is to be hanged but waits for the Dooms-Day.
The delay therefore which could be considered while considering the
question of commutation of sentence of death into one of life impris-
onment could only be from the date the judgment by the apex court is
pronounced i.e. when the judicial process has come to an end.
F "
After the matter is finally decided judicially, it is open to the
person to approach the President or the Governor, as the case may be,
with· a mercy petition, Some-times person or at his instance or at the
instance of some of his relatives, mercy petition and review petitions
are filed repeatedly causing undue delay in execution of the sentence.
G It was therefore contended that when such delay is caused at the in-
stance of the person himself he shall not be entitled to gain any benefit
out of such delay. It is no doubt true that sometimes such petitions are
filed but a legitimate remedy if ~vailable in law, a person is entitled to
seek it and it would therefore be proper that if there has been undue
and prolonged delay that alone will be a matter attracting the jurisdic-
H tion of this Court, to consider the question of the execution of the
SMT. TRIVENIBEN v. STATE OF GUJARAT [OZA, J.[ 529

sentence. While considering the question of delay' after the final
A
verdict is pronounced, the time spent on petitions for review· and
repeated mercy petitions at the instance of the convicted person
himself however shall not be considered. The only delay which would
be material for consideration will be the delays in disposal of the mercy
petitions or delay occurring at the instance of the Executive.
B
So far as the scope of the authority of the President and the
Governor while exercising jurisdiction under Article 72 and Article
161 are concerned the question is not at all relevant so far as the case in
hand is concerned. But it must be observed 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.
c
It was also contended that when capital punishment is awarded
the sentence awarded is only sentence of death but not sentence of
death plus imprisonment and therefore if a condemned prisoner has to
live in jail for ·long in substance it amounts to punishment which is
sentence of death and imprisonment for some time and this according D
to the learned counsel will amount to double jeopardy which is contrary
to Article 20 and the imprisonment cannot be justified in law. Section
366 of the Code of Criminal Procedure provides:

"366. Sentence of death to be submitted by Court of Ses-
sion for confirmation-(1) When the Court of Session pas- E
ses a sentence of death, the proceedings shall be submitted
to the High Court, and the sentence shall not be executed
unless it is confirmed by the High Court.

(2) The Court passing the sentence shall commit the con-
victed person to jail custody under a warrant." f

This no doubt authorises the Court of Sessions to commit a person
sentenced to death to jail'custody under a warrant. But this Section
does not contemplate how long he has to be in jail. Clause ( 1) of
Section 366 provides that when the Court of Sessions passes a sentence
of death the proceedings shall be submitted to the High Court and the G
sentence shall not be executed unless it is confirmed by the High
Court. It is therefore apparent that sub-clause (2) provided for com-
mitting the convicted person to jail awaiting the confirmation of the
sentence by the High Court. It is also clear that when a person is
committed to jail awaiting the execution of the sentence of death, it is
not imprisonment but the prisoner has to be kept secured till the. H
530 SUPREME COURT REPORTS [1989] 1 S.C.R.

sentence awarded by the court is executed ·and it appears that it is with
A
that purpose in view that sub-clause (2) of Section 366 simply provided
for committing the convicted person to jail custody under a warrant.

The question about solitary confinement or keeping the con-
demned prisoner alone under strict guard as provided in various jail
B manuals was considered by this Court in Sunil Batra v. Delhi Adminis-
tration, [1979] 1 SCR 392 and considering the question of solitary
confinment it was observed:

"In our opinion sub-s. (2) of S. 30 does not empower the
jail authorities in the garb of confining a prisoner under
sentence of death, in a cell apart from all other prisoners,
c to impose solitary confinement on him. Even jail discipline
inhibits solitary confinment as a measure of jail punish-
ment. It completely negatives any suggestion that because
a prisoner is under sentence of death therefore and by
reason of that consideration alone, the jail authorities can
D impose upon him additional and separate punishment of
solitary confinement. They have no power to add to the
punishment imposed by the Court which additional punish-
ment could have been imposed by the Court itself but has
in fact been not so imposed. Upon a true construction,
sub-s. (2) S.30 does not empower a prison authority to
E impose solitary confinment upon a prisoner under sentence
of death."

In the same judgment, it was further observed:

F
"What then is the nature of confinement of a prisoner who
is awarded capital sentence by the Sessions Judge and no
~
' .
other punishment from the time of sentence till the sen-
tence becomes automatically executable? Section 366(2) of
the Cr.P.C. enable the Court to commit the convicted
person who is awarded capital punishment to jail custody
under a warrant. It is implicit in the warrant that the pris-
G oner is neither awarded simple nor rigorous imprisonment.
The pmpose behind enacting sub-s. (2) of S.366 is to make
available the prisoner when the sentence is required to be
executed. He is to be kept in jail custody. But this custody
is something different from custody of a convict suffering
sim'.)le or rigorous imprisonment. He is being kept in jail
H custody for making him available for execution of the sent-
SMT. TRIVEN!BEN 1•. STATE OF GUJARAT [OZA, J.[ 531

ence as and when that situation arises. After the sentence
A
becomes executable he may be kept in cell apart from other
prisoners with a day and night watch. But even here, unless
special circumstances exist, he must be within the sight and
sound of other prisoners and be able to take food in their
company.
B
If the prisoner under sentence of death is held in jail
custody, punitive detention cannot be imposed upon him
by jail authorities except for prison offences. When a pris-
oner is committed under a warrant for jail custody under
s. 366(2) Cr. P.C. and if he is detained in solitary confine-
ment which is a punishment prescribed bys. 73 !PC, it will
amount to imposing punishment for the same offence more c
than once which would be violative of Article 20(2). But as
the prisoner is not to be kept in solitary confinement and
the custody in which he is to be kept under s. 30(2) as
interpreted by us would preclude detention in solitary con-
finement, there is no chance of imposing second punish- D
ment upon him and therefore, S. 30(2) is not violative of
Article 20."

It is therefore clear that the prisoner who is sentenced to death
and is kept in jail custody under a warrant un~r Section 366(2) he is
neither serving rigorous imprisonment nor simple imprisonment. In E
substance he is in jail so that he is kept safe and protected with the
purpose that he may be available for execution of the sentence which
has been awarded and in this view the aspect of solitary confinement
· has already been dealt with in the above noted case but it must be said
• that the life of the condemned prisoner in jail" awaiting execution of
sentence must be such which is not like a prisoner suffering the sen- F
tence but it is also essential that he must be kept safe as the purpose
of the jail custody is to make him available for execution after the
sentence is finally confirmed.

It was contended that the delay in execution of the sentence will
entitle a prisoner to approach this Court as his right under Article 21 is G
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 challenge
as violating Article 14 or Article 21 as has been laid down by this Court
in Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and
Anr., [1966] 3 SCR 744 and also in A.R. Antulay v. R.S. Nayak and H
532 SUPREME COURT REPORTS [19891 1 S.C.R.

A another, [19881 2 sec 602 the only jurisdiction which could be sought ~
to be exercised by a prisoner for infringement of his rights can be to '
challenge the subsequent events after the final judicial verdict is pro-
nounced and it is because of this that on the ground of long or inordi-
nate delay a condemned prisoner could approach this Court and that is
B what has consistently been held by this Court. But it will not be open
to this Court in exercise of jurisdiction under Article 32 to go behind 'I
or to examine the final verdict reached by a competent court conviCt-
ing and sentencing the condemned prisoner and even while consider-
ing the circumstances in order to reach a conclusion as to whether the
inordinate delay coupled with subsequent circumstances could be held
to be sufficient for coming to a conclusion that execution of the sen-
c tence 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 ver- 1'
diet. It may also be open to the court to examine or consider any
circumstances after the final verdict was pronounced if it is considered
D
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 sentence could be altered on that ground also.

So far as our conclusions are concerned we had delivered our
Order on October 11, 1988 and we had reserved the reasons to be •
given later. Accordingly in the light of the discussions above our
E
conclusion is as recorded in our Order dated October 11, 1988,
reproduced below:

"Undue long delay in execution of the sentence of death
will entitle the condemned person to approach this Court ,
F . under Article 32 but this Court will only examine the....,,
nature of delay caused and circumstances ensued after sen-' >
tence 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 inordi-
nate delay in the light of all circumstances of the case to
G
decide whether the execution of sentence should be carried
out or should be altered into imprisonment for life. No 4
fixed period of delay could be held to make the sentence of
death inexecutable and to this extent the decision in
Vatheeswaran's case cannot be said to lay down the correct
H law and therefore to that extent stands overruled."
SMT. TRIVENIBEN '·STATE OF GUJARAT [SHETfY,J.) 533
'
It K. JAGANNATHA SHETTY, J. Jn Bachan Singh v. State of
A
Punjab, I 1980] 2 SCC 684, this Court pronounced that the provision of
death penalty as an alternative punishment for murder, under sec. 302
· IPC is valid and constitutional. Sarkaria, J. who sopke for the majority
view held that the provisions relating to imposition of death sentence
· and the procedure prescribed thereof would ensure fairness and
.- reasonableness within the scope of Article 21. It was also observed B
that by no stretch of imagination it can be said that death penalty
under sec. 302 either per se or because of execution by hanging consti-
tutes an unreasonable, cruel or unusual punishment. Nor the mode of
~·"-'its execution has a degrading puni3hment which would defile the
.,. '\."dignity of the individual' within the preamble to the Constitution.
-'· I .
· The learned Judge, however, cautioned (at 751):
c
"A real and abiding concern for the dignity of human
life postulates resistance to taking a life through law's instru-
mentality. That ought not to be done save in the rarest of
rare cases when the alternative option is unquestionable
foreclosed." (Emphasis supplied) D

Bachan Singh case has thus narrowly tailored the sentencing dis·
cretion of courts as to death sentence. Death sentence cannot be given
_. if there is any mitigating circumstance in favour of the accused. All
circumstances of the case should be aggravating. It is in the· gravest of
grave crimes or in the rarest of rare cases, the death sePtence may be E
awarded. There is no offence in the penal code carrying mandatory
: death penalty. Section 303 !PC carrying the mandatory punishment
has been declared unconstitutional in Mithu v. State of Punjab, [1983]
.2 SCC 277. So much so, the death sentence is now awarded only in
~iniscule number of cases.
F
All the accused in these cases belong to that limited and excep-
tional category. The trial court convicted them under sec. 302 !PC and
sentenced them to death. The High Court confirmed their conviction
and sentence. This Court dismissed their special leave petitions .or
appeals and subsequent review petitions. Their mercy petitions to the
President and/or the Governor were also rejected. They have now G
} moved writ petitions under Article 32 of the Constitution. They are
not seeking to overturn the death sentence on the ground that the
Court has illegally inflicted it. Obviously, that they can not do. The
judgment of the court has become final. Under Article 141, it shall be
binding on all Courts. Under Article 142, it shall be enforceable
throughout the territory of India. Under Article 144 all authorities, H
·~.

' .. ,,

534' \ SUPREME COURT REPORTS [1989] 1 S.C.R.
'
A civil and judicial, in the territory of India shall act in aid of this Court.
The judicial verdict pronounced by court in relation to a matter cannot
·be challenged on the ground that it violates one's fundamental right.
The judgment ·of a court cannot be said to affect the fundamental
rights of citizens (See Naresh Sridhar Mirajkar's case, 1963 (3) SCR 744).
I - .
,...
~-
B The petitioners, however, contend that this Court must set aside
the death penalty and substitute a sentence of life imprisonment in
view of the p.rolonged delay in the execution. The dehumanising factor
prolonged delay with-the-mental torture in solitary confinement in jail,
. according to them, has rendered the execution unconstitutional under
Article 21. There are also some other subsidiary contentions to which I ~
C ,will presently refer. /.-
1
_We have earlier dismissed all but one petition giving our unanim-
ous conclusion stating therein that we wguld give our reasons later.
Here are my own.reasnns in support of that conclusion:

D The ·question whether prolonged delay renders death sentence
inexecutable and entitles the accused to demand the alternate sentence
of life imprisonment has arisen amid the diversity of judicial decisions
in (i) T. V. Vaitheeswaran v. State of Tamil Nadu, [1983] 2 SCR 348;
(ii) Sher Singh v. State of Punjab, (1983] 2 SCR 582; and (iii) Javed ...,-
Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8.
E ·· Vaitheeswam case was decided by a two Judge· Bench, where
Chinnappa Reddy, J. sai~ (at 359):
-- ,_
. "We f"md no impediment in holding that the
dehumanising factor of prolonged delay in the execution of
a sentence of death has the constitutional implication of
F depriving a person of his life in an unjust, unfair and un-
reasonable way as to offend the constitutional guarantee
that no person shall be deprived of his life or personal
·liberty except according to procedure established by law.
The appropriate relief in such a case is to vacate the sen·
tence of death." ·
G •
. There then the learned Judge said (at 360):

"Making all reasonable allowance for the time neces'
sary for appeal and consideration of reprieve, we think that
delay exceeding two years in the execution of a sentence of
H death should be considered sufficient to entitle the person
SMT. TRIVENIBEN v. STATE OF GUJARAT .[SHETIT,l.] 535

under sentence of death to invoke Article 21 and demand
A
the quashing of the sentence of death."
""
Sher Singh case was decided by a three Judge Bench. Chandra-
chud, CJ., who spoke for the Bench while disagreeing with above view
in Vaitheeswaran, said (at 595):
B
~ "The' snbstitution 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 demons-
trandum.''
~-t
Then followed the decision in Javed Ahmad case. There Chin-
"• nappa Reddy, J. raised a question whether a three Judge Bench would c
overrule the decision of a two Judge Bench merely because three is
~
larger than two? The learned Judge said:

"The court sits in division of two and three Judges for
the sake of convenience and it may be inappropriate for a D
Division Bench of three Judges to purport to over-rule the
decision of a Division Bench of two Judges. Vide Young v.
Bristol Aeroplane Co. Ltd. It may be otherwise where a full
Bench does so. We do not, however, desire to embark
upon this question in this case. In the present case, we are
satisfied that an overall view of all the circumstances E
appears to us to entitle the petitioner to invoke the protec-
. tion of Article 21 of the Constitution. We accordingly
quash the sentence of death and substitute in its place the
sentence of imprisonment for life."
\

~- the question posed in Javed Ahmad case relates to the practice F
and ptocedure of this Court. It presents little problem and could be
conveniently disposed of without much controversy. At the time of
framing the Constitution, Mr. B.N. Rau, after his return from United
States reported to the President of the Constitution Assembly as
follows:
G
"Again Justice, Frankfurter was very emphatic that
> any jurisdiction, exercisable by the Supreme Court, should
- · be exercised by the full Court. His view is that the highest
Court of appeal in the land should not sit in divisions.
Every Judge, except of course such judges as may be dis-
qualified by personal interest or -otherwise from hearing H
536 SUPREME COURT REPORTS 11989] 1 S.C.R.

particular cases, should share the responsibility for every
A
decision of the Court." (The Framing of India's Constitu-
tion Vol. III by S. Shiva Rao p. 219).

This was a very good suggestion. But unfortunately that suggestion
was not accepted and the principle which was dear to Justice Frank-.
B furter was not incorporated in our Constitution. The result is that
each Judge does not share the responsibility for every decision of this
Court.

For a proper working arrangement in the Court, we have framed
Rules under Article 145 of the Constitution conferring power on the
Chief Justice to constitute benches for disposal of cases. Order VII
c Rule (1) of the Supreme Court Rules 1966 provides that every cause,
appeal or matter shall be heard by a Bench consisting of not less than
two judges nominated by the Chief Justice. But this rule is subject to
the requirement under Article 145(3) of the Constitution. Article
145(3) requires a minimum number of five judges for deciding any case
D involving substantial question of law as to interpretation of the Con-
stitution. In any event, the Supreme Court has to sit in benches with
judges distributed as the Chief Justice desires:

In this context, Order VII Rule 2 of the Supreme Court Rules +
also needs to be noted. It provides:
E
"Where in the course of the hearing of any cause,
appeal or other proceeding, the bench considers that the
matter should be dealt with by a larger bench, it shall refer
the matter to the Chief Justice, who shall thereupon consti-
tute such a bench for the hearing of it."
F
This is undoubtedly a salutory Rule, but it appears to have only a
limited operation. It apparently governs the procedure of a smaller
bench when it disagrees with the decision of a larger bench. The bench
in the course of hearing of any matter considers that the matter. should
be dealt with by a larger bench, it shall refer the matter to the Chief
G Justice. The Chief Justice shall then consitute a larger bench for dis-
posal of the matter. This exercise seems to be unnecessary when a
larger bench considers that a decision of a smaller bench is incorrect
unless a constitutional question arises. The practice over the years has
been that a larger bench straightaway considers the correctness of and
if necessary overrules the view of a smaller bench. This practice has
H been held to be a crystallised rule of law in a recent decision by a
SMT. TRIVENIBEN v. STATE OF GUJARAT [SHETrY,J.] 537

special bench of seven learned judges. In A.R. Antulay v. R.S. Nayak,
A
AIR 1988 SC 1531, Sabyasachi Mukharji, J., speaking for the majority
said:

"The principle that the size of the bench whether it is
comprised of two or three or more judges-does not
matter, was enunciated in Young v. Bristol Aeroplace Ltd.
(supra) and followed by Justice Chinnappa Reddy in Javed
Ahmad Abdul Hamid Paw/av. State of Maharashtra, [1985]
2 SCR 8 where it has been held that a Division Bench of
two judges, has not been followed by our courts.

xxxx xxxx xxxx xxxx xxxx
c
"The law laid down by this Court is some what different.
There is a hierarchy within the court itself here where
larger benches overrule smaller benches. See Mattu/a/ v.
Radhey Lal, [1975.] 1 SCR 127: AIR 1974 SC 1596; Union
of India v. K.S. Subramanian [19771 1SCR87 at 92: AIR D
1976 SC 2433 at 2437 and State of UP. v. Ram Chandra
. Trivedi, [1977] 1 SCR 462 at 473: AIR 1976 SC 2547 at
2555. This is the practice followed by this Court and now it
is a crystallised rule oflaw." ·

The answer to the question posed in Javed Ahmad case thus E
stands concluded .and it is now not open to any one to contend that a
• bench of two judges cannot be overruled by' a bench of three judges .
We must regard this as a final seal to the controversy.
\
Before grappling with the crucial issue that has been raised in
~- these petitions, it would be convenient to dispose of what may be F
' regarded as peripheral submissions. Mr. R.K. Jain, learned counsel
who led the arguments on behalf of the petitioners referred to us in
detail the consideration of justice, morality and usefulness of capital
punishment. The counsel also referred to us the opinion expressed by
eminent persons like Shri Arvindo (Tales of Prison Life) with regard
to torment in the prison life. He also invited our attention to the G
dissenting opinion of Bhagwati, J., in Bachan Singh where learned.
Judge obserVed that the execution "serves no social purpose." The
learned counsel made an impassioned appeal to save the life of these
condemned persons by substituting life imprisonment on the ground of
inordinate delay in execution. I can really appreciate the compassion-
ate feeling with which the counsel made his submission. The "self" in H
538 SUPREME COURT REPORTS [1989] l S.C.R.

him came out with every word he uttered. He seems to belong to a
A
faith where 'non-violence' to every life is a must. Not that we are
different underneath the rotes. As said by Justice Brennan, while deal-
ing with his opinion in 1-iirman v. Georgia. (408 U.S. 238) "I am not.
that we are each not. a human being with personal views and moral
sensioilties and religious scruples. But it is to say that above all, I am a
B Judge". (The Oliver wendell Homes Lecture, delivered in September
5, 1986). We are flesh-and-blood mortals with normal human traits.
Indeed, like all others, we too have some inborn aversions and ac-
quired attractions. But it is not for us while presiding over courts to
decide what punishment or philosophy is good for our people. While
examining constitutional questions, we must never forget Marshall's
mighty phrase "that it is a constitution that we are expounding". We
c are oath bound to protect the Constitution. We are duty bound to
safeguard the life and liberties of persons. We must enforce the con-
stitutional commands, no matter what the problem. In other issues of
constitutional considerations, we must understand the ·aspirations and
convictions of men and women of our time. And we should not be
D swayed by our own convictions. We must never allow our individuality
to overshadow or supersede the philosophy of the Constitution.

These are various philosophical ideologies .and underpinnings
about the purposes of punishment. It includes among others deter-
rence, retribution, protecting persons, punishing guilty and acquitting
[, the innocent. Among these ohjcctivcs deterrence and retribution arc
prominent. Retribution is often confused with revenge, but there arc
distinct differences. Rctfibution embodi.es the concept that an offen-
der should receive what he rightfully deserves. Deterrence has a two
fold object. The first object relates to specific deterrence. It will deter
the individual from committing the same or other offences in the
F future. The second object is as to general deterrence. It will convince
or deter others that "crime does not pay") (See Crime and Punish-
ment' by Harry E. Allen & Ors. at 735).

The Law Commission of India summarised these aspects as to
the capital sentence (35th report para 265( 18)):
G
"The fact remains however, that whenever there is a
serious crime, the society feels a sense of disapprobation. If
there is any element of retribution in the law, as adminis-
tered now, it is not the instinct of the man of jungle but
rather a refined evolution of that instinct the feeling prevails
H in the public is a fact of which notice is to be taken. The law
SMT. TRIVENIBEN v. STATE OF GUJARAT ISHETTY.J.I 539

does not encourage it, or exploit it for any undesirable A
ends. Rather, by reserving the death penalty for murder,
and thus visiting this gravest crime with the gravest punish-
ment the law helps the element of retribution merge into
the element of deterrence."

Sarkaria, J., after referring to this report speaking for the majo- B
rity in Bachan Singh, I1980] 2 sec 684 at 721 recognises:

"Retribution and deterrence are not two divergent
ends of capital punishment. They are convergent goals
which ultimately merge into one."

The punishments are provided in order to deter crimes. The punish-
c
ments are imposed to make the threat credible. Threats and imposition
of punishmen.ts are obviously necessary to deter crimes. As a venerated
British Historian, Arthur Bryant writes "The sole justification for the
death penalty is not to punish murderers but to prevent murder."
Professor Earnest Van Den Haag states: D

'The murderer learns through his punishment that
his fellow men have found him unworthy of living, that
because he has murdered, he is being expelled from the
community of the living. This degradation is self-inflicted.
By murdering, the murderer has so dehumanised himself E
that he cannot remain among the living. The social recogni-
.tion of his self-degradation is the punitive essence of execu-
tion." (See Harward Law Review: 1986 Vol. 99 p. 1699).

Of course, one cannot have any empirical data to prove that
capital punishment can be deterrent greater than life imprisonment. It F
may be that most killers as the Professor Jack Greenberg states "do
not engage in anything like a cost-benefit analysis. They are impulsive
and they kill impulsively." The paradigm of this kind of murderers
cannot be properly accounted for. However, many classic experiments
on the effects of corporal punishments on dogs, monkeys, pigeons and
other animals have been conducted in psychology laboratories. G
Graeme Newman in his book "Just and Painful" (at 127) refers to such
experiments. The learned author states that corporal punishment
works and it has been so successful that some animals have starved
themselves to death rather than eat the forbidden food. This position
with the human beings is said to be not different. Indeed, it cannot be
different as we could see from day to day life. As between life and H
540 SUPREME COURT REPORTS [1989] 1 S.C.R.

A death one lives life. It is the love of life with sensuous joy of com- ,.
panionship that moves the race and not so much the ideals. One views
the death with trepidation. In fact, every living being dreads death and
it cannot be an exception with those on death row. They like all others
want to live and live as long as they can. Because, the life has its own
attraction, no matter in what form and condition. The death has no
B such attraction and cannot have any, since it is the most mysterious of
all in this world.

The criminal law always keeps pace with the development of
society. It reflects as Chief Justice Warren said: "the evolving
standards of decency that mark the progress of a maturing society".
(Trap .. v. Dulles, 356 U.S. 86, 101 (1958). We have much to learn
c from history of every country. The punishment which meets the unani-
mous approval in one generation, may rank as the most reprehensible
form bf cruelty in the next. Take for instance, the punishment of
whipping. A search of historical records of 16th century England
shows that men and women were whipped unmercifully for trivial
D offences as peddling, being d;unk on a Sunday, and participating in a
riot.

Many other instances of ferocious whippings of men and women,
both for political and other offences, besprinkle and blacken English
historical records. Rarely did any shred of excuse for human frailty
E seem to enter into the souls of those sitting in judgment. In the days of
Charles the Second, however, the Duke of York did interpose in one
such case-he saved Lady Sophia Lindsay from being publicly whip-
ped through the streets of Edinburgh for the crime of assisting at the
escape of the Earl of Argyle, her own father-in-law.

F In the early eighteen hundreds the Australian penal settlements
were the scene of floggings of so severe a nature as to rival, for sheer
savagery, the_ worst that were inflicted in England during the sixteenth
century, or in the southern State of America during the days of
slavery. In the United States of America whipping was a favourite
seventeenth-century punishment for various offences, and both male ·
G and female culprits came under the lash. Of all the civilized, nations,
Russia may be considered to be the one which not only used the whip
unmercifully, but also a~ the nation which continued to use it longer by
far and for a gryater variety of crimes than did any other. Next to
Russia, for sheer love of whipping, comes China, and little less formid-
able than the Russian knout is the Chinese rocl of split bamboo. The
H sharp edges of the bamboo cut into the flesh, inflicting terrible Iacera-
SMT. TRIVENIBEN v. STATE OF GUJARAT ISHETI'Y,J.I 541

tions. Little wonder that deaths, as a result of these floggings, have
A
been frequent, and that those who escape this fate are often so terribly
mutilated that they remain crippled for the rest of their lives (The
Hisiory of corporal Punishment-by G .R. Scott (1948) pages 39 to
56).

Take the history of punishment of death in England. In 1810 Sir B
Samuel Romilly who asked the Parliament to abolish the death penalty
for some of crimes said "there is probably no other country in the
world in which so many and so great a variety of human actions are
punishable with loss of life as in England". (A History of English
Criminal Law By L. Radzinowicz V(l} p(l).

The beginning of the nineteenth century was a period of indis- c
criminate imposition of capital punishment in England for numerous
widely differing offences. There were two hundred or more such
. offences. There were several legislations providing punishment of
death in the reign of George IV. All felonies except petty larceny and
mayhem were theoretically punishable with death. From 1827 to 1841 D
several legislations w~r~ passed abolishing the punishment of death in
a" variety of cases. Burning continued till 1790 to be the punishment
inflicted on women for treason, high or petty. (Which latter included
not only the murder by a wife of her husband, and the murder of a
master or mistress by a servant but also several offences against the
coin). Burning in such cases was abolished by 30 Geo, 3, c. 48. In E
practice, women were strangled before they were burnt; this, how-
ever, depended· on the executioner. In one notorious case a woman
was actually burnt alive for murdering her husband, the executioner
being afraid to strangle her because he was caught by the fire. In the
reign of George II, an act was passed which was intended to make the
punishment for murder more severe than the punishment for other F
capital crimes. This was 25 Geo. 2, c. 37, which provided that a person
convicted of murder should be executed on the next day but one after
his sentence (unless he was tried on a Friday, in which case he was to
be hanged on the Monday). He was to be fed on bread and water in the
interval and his body, after death, was either to be dissected or to be
hung in chains. The judge, however, had power to respite or to remit G
these special severities. Under this act murderers were usually
anatomized, but sometimes gibbeted. By the 2 & 3 Will 4, c. 7 s. 16
(for the regulation of schools of anatomy}, it was enacted that the
bodies of murderers should no longer be anatomized, but that the
sentence should direct that they should either be hung in chains or a.
buried in the prison. Several persons were gibbeted under this act. H
•
542 SUPREME COURT REPORTS [1989] 1 S.C.R.

A These provisions distinguish English law in a marked manner from the
continental laws down to the end of the last century. In most parts o~
the continent breaking on the wheel, burning in some cases quartering
alive and tearing with red-hot pincers, were in use, as well as simpler
forms of death. (History of the Criminal Law of England by Stephen
Ch. XIII p. 477-478).
B )
Through out the reign of Henry the Eighth, there were no fewer
than two thousand executions a year. As the stress on the value of
property increased, the net was widened. Not alone murderers and
traitors; but robbers, coiners, heretics and witches were sent to their
death. The shooting of a rabbit; the forgery of a birth certificate; the
C theft of a pocket-handkerchief; the adoption of a disguise; the damag-
ing of a public property were also included in the list of death sen-
tence. In 1814 a man was hanged at Chelmsford for cutting down a
cherry tree.

The public hangings in England continued until well into the
D nineteenth century. There were public executions with a large number
of people watching. On January 22, 1829, Willian Burke was hanged at
Edinburgh, and the crowd was great beyond all former precedent. The
last person to be hanged publicly in England was Michael Marett, who
was executed at Newgate on May 26, 1868. As time went past, the list
of death sentence crimes was rapidly reduced and in 1950, it was con-
E fined for four crimes only, to wit; (1) murder, (2) treason, (3) piracy
with violence, and (4) setting fire to arsenals and dockyards. Later this
was also abolished. (See. G.R. Scott, The History of Capital Punish-

p
ment, 38-66 (1950).

What happened in the United States? It will be noticed that in
the United States, the accused has a constitutional right to be tried by
a Jury, as provided under 6th Amendment. The accused has a right not
+
to be subjected to "cruel and unusual punishment" as mandated under
8th Amendment. In Furman, some Judges took the view that death
sentence was unacceptable to the evolving standards of decency of the
American people. But the American people rejected that view. Since
G then 35 States have re-enacted laws providing for the death sentence
for murder of suitably altering the provisions to comply with Furman.

What do we have here? The representatives of our people are
cognizant of the contemporary social needs. The legislative amend-
. meats brought about from time to time are indicative of their aware-
H ness. Sub-sec. (5) of sec. 367 of the Code of the Criminal Procedure,
SMT. TRIVENIBEN v. STATE OF GUJARAT [SHETTY,J.} 543

1898 as it stood prior to its amendment by Act 25 of 1955 provided:
A
"If the accused is convicted of an offence punishable
with death, and the court sentences to any ·punishment
other than death, the court shall in its judgment state the
reasons why sentence of death was n.ot passed."
B
This provision laid down that if an accused was convicted of an
offence punishable with death, the imposition of death sentence was
the rule and the awarding of a lesser sentence was an exception. The

~-
court had to state the reasons for not passing the sentence of death.
There was a change by the amending Act 26 of 1955 which came into
force with effect from January 1, 1956. The above sub-section was
deleted and it was left to the discretion of the court in each case to pass C
a sentence of death or life imprisonment. In 1973 there was again a
reshaping of the provision regarding the death penalty. In the Code of
Criminal Procedure, 1973, sec. 354(3) was inserted in these terms:

"When the conviction is for an offence punishable D
with death, or in the alternative with the imprisonment for
life or imprisonment for a term of years, the judgment shall
state the reasons for the sentence awarded, and in the case
of sentence of death, the special reasons for such sen-
tence."
E
It is now obligatory for the court to state reasons for the sentence
awarded for the offence of murder. The court cannot award death
sentence without giving special reasons. As earlier noticed that death
sentence could be awarded only in exceptional cases and not in the
.,./-. usual run of murders. We have got just six offences carrying death
: penalty and that too as an alternate sentence (Sections 120B, 121, 132, F
302, 307 and 396 IPC).

This is the need and notion of the present day society. Tomor-
row's society and the atmopshere in which they live may be qutte
different. They may not have rapist murderers like Ranga and Billa.
They may not have any merciless killing and bride-burning. They may G
-* have more respect for each other life. They may be free from criminali-
sation of politics and elimination of political leaders by muscle power.
There then the penal law cannot remain isolated and untouched. It will
be profoundly influenced by philosphy prevailing. Time may reach for
the representatives of people to consider that death penalty even as an
alternate sentence for murder is uncalled for and unnecessary. There is H
SUPREME COURT REPORTS [1989] 1 S.C.R.

A nothing in our Constitution to preclude them from deleting that
alternate sentence. The crusade against capital punishment may,
therefore, go on elsewhere and not in this Court.

Let me now turn to the pivotal question which I have referred at
the beginning of the judgment. The question is whether the sentence
B of life imprisonment should be substituted on account of time factor )
alone, however, right and valid and death sentence was at the time
when it was awarded. The arguments for the petitioners primarily
rested on the common area of agreement in Vaitheeswaran and Sher
Singh cases on the implication of Article 21. The accepted principle
according to counsel, is that prolonged delay in execution would be
"unjust, unfair and unreasonable". It would be inhuman and
c dehumanising to keep the condemned person for a long period. It
offends the constitutional safeguards under Article 21.

Article 21 of the Constitution mandates the state that no person
shall be deprived of his life or personal liberty except according to the
D procedure established by law. The scope and content of this Article
has been the subject matter of intensive examiQation in the recent
decisions of this Court. I do not want to add to the length of this
judgment by recapitulating all those decisions in detail. I may only
highlight some of the obvservations which are relevant to the present
case. In Maneka Gandhi v. Union of India, [1978] 1 SCC 248 this
E Court gave a new dimension to Article 21. The seven Judge bench held
that a statute which merely prescribes some kind of procedure for
depriving a person of his life or petsonal liberty cannot meet the
requirements of Article 21. Bhagwati, J., as he then was, while
explaining the nature and requirement of procedure under Article 21 ·
observed (at 283): ~
F '
"We must reiterate here what was pointed out by the
majority in E.P. Rayappa v. State of Tamil Nadu, [1974] 3.
SCR 348: [1974] 4 SCC (L & S) 165, namely, that from a
positivistic point of view, equally is antithetic to arbitrari-
ness. In fact equality and arbitrariness are sworn enemies;
G one belongs to the rule of law in a republic, while the other,
to the whim and caprice of an absolute monarch. Where an
act is- arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is,
therefore, violative of Article 14". Article 14 strikes at
arbitrariness in State action and ensures fairness and equa-
H lity of treatment. The principle of reasonableness, which
SMT. TRIVENIBEN v. STATE OF GUJARAT ISHElTY,J.I 545

legally as well as philosophically. is an essential element of
A
equality or non-arbitrariness pervades Article 14 like a
brooding omni-presence and the procedure contemplated
by Article 21 must answer the test of reasonableness in
order to be in conformity with Article 14. It must be "right
and just and fair" and not "arbitrary, fanciful or oppres-
sive", otherwise, it would be no procedure at all and the B
requirement of Article 21 would not be satisified."

If one prefers to go yet further back, the procedural fairness in
the defence of liberties was insisted upon even in 1952. The State of
West Bengal v. Anwar Ali, [1952] SCR 284 Bose, J., remarked (at
367):
c
"The question with which I charge myself, is, can
fair-minded, reasonable, unbiased and resolute men, who
are not swayed by emotion or prejudice, regard this with
equanimity and call it reasonable, just and fair, regard it as
that· equal treatment and protection in the defence of D
liberties which is expected of a sovereign democratic re-
public in the conditions which obtain in India today? I have
but one answer to that. On that short and simple ground I
would decide this case and hold the Act bad."

In Bachan Singh case, Sarkaria, J., affirming this view said (at E
730):
•
"No person shall be deprived of his life or personal
liberty except according to fair, just and reasonable proce-
dure established by valid law."
F
In Mithu v. State of Punjab, [1983] 2 SCC 277 Chandrachud,
C.J., said (at 284):

" .... that the last word on the question of justice and
fairness does not rest with the legislature. Just as reason-
ableness of restrictions under clauses (2) to (6) of Article 19 G
\'
> is the for the courts to determine, so is it for the courts to
decide whether the procedure prescribed by a law for
depriving a person of his life or liberty is fair, just and
reasonable."

In Sher Singh v. State of Punjab, [1983] 2 SCC 582 Chandrachud, H
C.J., again explained (at 593):
546 SUPREME COURT REPORTS I 19891 I S.C.R.

"The horizons of Article 21 are ever widening and the ~
A final word on its conspectus shall never have been said. So
long as life lasts, so long shall it be the duty and endeavour
of this Court to give to the provisions of our Constitution a
meaning which will prevent human suffering and degrada-
tion. Therefore, Article 21 is as much relevant at the stage
B of execution of the death sentence as it is in the interreg- )
num between the imposition of that sentence and its execu-
tion. The essence of the matter is that all procedure no
matter the stage, must be fair, just and reasonable."

Article 21 thus received a crative connotation. It demands that
any procedure which takes away the life and liberty of persons must be
c reasonable, just and fair. The procedural fairness is required to be
observed at every stage and till the last breath of the life.

In Vaitheeswaran the court thought that the delay of two years
would make it unreasonable under Article 21 to execute death sen-
D tence. The court did not attach importance to the cause of delay. The
Cause of delay was immaterial. The accused himself may be responsi-
ble for the delay. The court said that the appropriate relief would be to
vacate the death sentence and substitute life imprisonment instead.

The learned counsel for the petitioners argued that if two years
period of delay set out in Vaitheeswaran does not present favourably,
we may fix any other period but we should not disturb the basis of the
decision. He invited our attention to a number of authorities where •
courts have awarded life imprisonment on the ground of delay in dis-
posal of cases.

F In Vivian Rodrick v. The State of West Bengal, 1197111SCR468 ~
six years delay was considered sufficient for imposing a lesser sentence
of imprisonment for life. In State of U.P. v. Paras Nath Singh & Ors.,
11973] 3 SCC 647, the Court, while reversing the order of acquittal
awarded life imprisonment on the ground that the accused was under
sentence of death till he was acquitted by the High Court. Similar was
G the view taken in State of Bihar v. Pashupati Singh, 1197413SCC376;
State of U.P. v. Suresh, 11981] 3 SCC 635 at 643 and State of U.P"v. J
Sahai, I19821 1sec352,

!11 Siate of U. P. v. Suresh, the accused was given life imprison-
ment in view of the fact that seven years had elapsed after the date of
H .murder. In Ram Adhar v. State of U.P., 1197913SCC774 at 777, ihe
SMT. TRIVEN!BEN v. STATE OF GUJARAT !SHETIY,J.I 547

~ delay of six years from the date of occurrence was held sufficient to
A
commute the sentence of death to life imprisonment. The court also
observed that the accused was not responsible in any manner for the
lapse of time that has occurred.

In Nethi Sreeramulu v. State of A.P., [1974] 3 SCC 314 the Court
while disposing of the appeal in 1973 commuted the sentence of death B
given in 1971 to life imprisonment. In State of U.P. v. Lalla Singh &
Ors., I1978] 1 sec 142 six years delay from the date of judgment of the
trial court was a consideration for not givirig the death sentence. In

.--i :~
Sadhu Singh v. State of U.P., [1978] 4 SCC 428 about three years and
seven months during which the accused was under spectre of death
sentence, was one of the relevant factors to reduce the sentence to life
imprisonment. c
There are equally other decisions where in spite of the delay in
disposal of the case, the Court has awarded the death sentence. In
Nachhittar Singh v. State of Punjab, [1975] 3 SCC 266, the court re-
fused to consider the question of delay as a mitigating circumstances. D
In Maghar Sing v. State of Punjab, [197514 SCC 234, the court said that
delay does not appear to be good ground to commute to life imprison-
ment in view of the pre-planned, cold-blooded and dastardly murder
~
committed by the accused. In Lajar Mashi v. State of U.P,, [19761 1
sec 806, the court while confirming the death sentence observed (at
809): E

- "The value of such delay as a mitigating factor de-
pends upon the features of a particular case. It cannot be
divorced from the diabolical circumstances of the crime

·...f--.
,
itself, which, in the instant case fully justify the award of
capital sentence for the murder of the deceased. We, there- F
fore, uphold the award of the capital sentence to the appel-
lant and dismiss his appeal."

All these decisions are of little use to determine the constitution-
ality of execution of the death sentence on the relevance of delay.
These decisions relate to the sentencing discretion of courts with which G
we are not concerned. We are concerned with the right of the accu>ed
~ to demand life imprisonment after the final verdict of death sentence
with every justification to impose it.

The demand for life imprisonment herein as solely based on the
ground of prolonged delay in the execution. The delay which is sought H
"'\;
548 SUPREME COURT REPORTS I1989] I S.C.R.

A to be relied upon by the accused consists of two parts. The first part
covers the time taken in the judicial proceedings. It is the time that the
parties have spent for trial, appeal, further appeal and review. The
second part takes into fold the time utilized by the executive in the
exercise of its prerogative clemency.

B I start with the first part of the delay. In Vaitheeswaran this part
of the delay was expressly taken into consideration. It was observed
that the period of two years as prolonged detention would include the
time necessary for appeal from the sentence of death and considera-
tion of reprieve. In Sher Singh, this period has not been accepted as
good measure. The court said that the fixation of time limit of two
C years did not accord with the common experience of time normally
consumed by the litigative process and the proceedings before the
Government.

Mr. Parasaran, learned Attorney General has altogether a diffe-
rent approach and in my opinion very rightly. He argued that the time
D spent by the courts in judicial proceedings was intended to ensure a
fair trial to the accused and cannot be relied upon by the same accused
to impeach the execution of the death sentence. The relevant provi-
sions in the Indian Penal Code, the Criminal Procedure Code, the
Evidence Act and the Rules made by the High Courts and the
Supreme Court governing the trial, appeal, execution of sentence,
E etc., were all highlighted. According to learned Attorney, th~se provi-
sions are meant to examine the guilt or innocence of the accused and to
have an appropriate sentence commensurate with the gravity of the
crime. They constitute reasonable procedure, established by law.
-
I entirely agree. The time taken in the judicial proceedings by ~-
..
F way of trial and appeal was for the benefit of the accused. It was
intended to ensure a fair trial to the accused and to avoid hurry-up
justice. The time is spent in the public interest for proper adminstra-
tion of justice. If there is inordinate delay in disposal of the case, the
trial court while sentencing or the appellate court while disposing of
the appeal may consider the delay and the cause thereof along with
G other circumstances. The court before sentencing is bound to hear the
parties and take into account every circumstance for and against the
accused. If the court awards death sentence, notwithstanding the delay
in disposal of the case, there cannot be a second look at the sentence
save by way of review. There cannot be a second trial on the validity of
sentence based on Article 21. The execution which is impugned is
H execution of a judgment and not apart from judgment. If the judgment
I··
SMT. TRIVENIBEN v. STATE OF GUJARAT [SHETTY, J.J 549

with the sentence awarded is valid and binding, it falls to be execute<) A
in accordance with law since it is a part of the procedure established by
law. Therefore, if the delay in disposal of the case is not a mitigating
circumstance for lesser sentence, it would be, in my opinion, wholly
inappropriate to fall back upon the same delay to impeach the
execution. B

If the delay in passing the sentence render the execution uncon-
stitutional, the delay subsequent thereof cannot also render it uncon-
stitutional. Much less any fixed period of delay could be held to make
the sentence inexecutable. It would be arbitrary to fix any period of
limitation for execution on the ground that it would be a denial of
fairness in procedure under Ariticle 21. With respect, I, am unable to c
agree with the view taken in Vatheeswaram case on this aspect.
.
Under Article 72 of the Constitution, the President shall have
the power to "grant pardons, reprives, respites or remissions of
punishment or to suspend, remit or commute the sentence of any D
person convicted in an offence". Under Article 161 of the Constitu-
tion: similar is the power of the Governor to give relief to any person
convicted of any offence against any law relating to a matter to which
the executive power of the State extends. The time taken by the execu-
tive for disposal of mercy petitions may depend upon the nature of the
case and the scope of enquiry.to be made. It may also depend upon the E
number of mercy petitions submitted by or on behalf of the accused.

- The Court, therefore, cannot prescribe a time limit for disposal Of
even for mercy petitions.

It is, however, necessary to point out that Article 21 is relevant at
all stages. This Court has emphasized that "the speedy trial in criminal
-.J-. cases though not a specifiC fundamental right, is implicit in the broad
F
sweep and content of"Article 21". (See: Hussainara Khatoon v. The
State of Bihar, 11979] 3 SCR 169 and 1980 (1) SCC 81. Speedy trial is a
part of one's fundamental right to life and liberty. (See Kadra
Pahadiya v. State of Bihar, 1198113 SCC 671and1983 2 SCC 104. This
principle, in my opinion, is no Jess important for disposal of mercy G
petition. It has been universally recognised that a condemned person
has to suffer a degree of mental torture even though there is no physi-
_),
cal mistreatment and no primitive torture. He may be provided with
amenities of ordinary inmates in the prison as stated in Sunil Batra v.
Delhi Administration, 1197814SCC491, but nobody could succeed in
giving him peace of mind. H
•

550 SUPREME COURT REPORTS [198911 S.C.R.

A Chila Chinta Dwayoormadhya,

Chinta tatra gariyasi,

Chila Dahati Nirjivam,

B Chinta dahati Sajeevakam.

As between funeral fire and mental worry, it is the latter which is
more devastating, for, funeral fire bums only the dead body while the
mental worry bums the living c:me. This mental torment may become
acute when the judicial verdict is finally set against the accused.
Earlier to it, there was every reason for him to hope for acquittal. That
C hope is extinguished after the final verdict. If, therefore, there is inor-
dinate delay in execution, the condemned prisoner is entitled to come
to the court requesting to examine whether, it is just and fair to allow
the sentence of death to be executed.

D What should be done by the Court is the next point for consi-
deration. It is necessary to emphasise that the jurisdiction of the Court
at this stage is extremely limited. If the Court wants to have a look at
the grievance as to delay, it is needless to state, that there should not
be any delay either in listing or in disposal of the matter. The person
who complains about the delay in the e·xecution should not be put to
E further delay. The matter, therefore, must be expeditiously and on top
priority basis, disposed of. The Court while examining the matter, for
the 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 peti-
tion filed by or on behalf of the accused either under Article 226 or
F under Article 32 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 inordinate delay, may be a significant factor, but
that by itself cannot render the execution unconstitutional. Nor it can
G be divorced from the dastardly and diabolical circumstances of the
c,rime itself. The Court has still to consider as observed in Sher Singh
case (at 596):

"The nature of the offence, the diverse circumstances
attendant upon it, its impact upon the contemporary soci-
H ety and the question whether the motivation and pattern of
SMT. TRIVENIBEN v. STATE OF GUJARAT (SHETI'Y, J.J 551

the crime are such as··are likely to lead to its repetition, if A
the death sentence is vacated·; are matters which must enter
into the verdict as to whether the sent.ence should be vac-
ated for the reason that its execution is delayed."

The last contention urged for the petitioners that the accused
,.- should not be executed if he was since improved is unavailable since it B
seeks to substitute a new procedure which the. Code does not provide
for.··

~-- We have already considered all these cases in the light of these
, principles and disposed them of by our earlier unanimous order.
c
N.P.V.