Haja Moideen And Etc., Petitioners V. Government
Of India And Others, Etc., Respondents.
DATE : 15-12-1989
1991-(097)-CRLJ -1325 -MAD
JUDGE(S) :
S T Ramalingam
T S Arunachalam
MADRAS HIGH COURT
JUDGMENT
ARUNACHALAM, J. :- A few of the convicts, who are now in prison
for a few years in pursuance of the verdict of this Court and
the Apex Court, sentencing them to the extreme penalty or law
and who are awaiting execution, have thronged this Court by these
writ petitions with a cry "I want to live-let me not die",
though the Court had verdicted, they deserve to die. These writ
petitions are mainly based on the long delay on the part of the
executive in disposing of their mercy petitions. They claim to
have suffered mental agony of living under the shadow of death
for a long long period and clamour that they should not suffer
that agony and longer.
W.P. No. 10239 of 1985
Haja Mohideen, the petitioner in this writ now confined in Central
Prison, Trichirapalli, was tried in Sessions Case No. 38 of 1978
on the file of the Court of Session, East Thanjavur Division at
Nagapattinam and sentenced to death, subject to confirmation by
the Court, by judgment dated 30th December, 1978. He was alleged
to have committed the murder of Katheeja Ammal, Jainabgani Ammal
and Abdul Majeed either by cutting with a knife or by administering
cyanide poison to them. There were also charges under sections
392 read with S. 397 I.P.C., 201 and 307 IPC. The murders had
taken place between 6th July 1976 and 14th March, 1977. The petitioner
filed C.A. No. 208 of 1979 in this Court, challenging his conviction
and the reference made under section 366 Cr.P.C. was taken up
as Referred Trial No. 2 of 1979. R.T. No. 2 of 1979 and C.A. No.
208 of 1979 were disposed of together and by judgment dated 14th
February, 1990, this Court confirmed the sentence of death imposed
on the petitioner by the trial court. The petitioner had filed
an appeal to the Supreme Court of India, which was dismissed on
12th April, 1982 in S.L.P. (Crl.) 285 of 1982. The petitioner
filed W.P. No. 286 of 1983 before the Supreme Court, which was
also dismissed on 21-10-1983. Review Petition (Crl.) 152 of 1985
preferred by the petitioner in the Supreme Court was dismissed
on 15-3-1985. While filing the present writ petition, the petitioner
had filed W.M.P. of 1985 for stay of all further proceedings in
S.C. No. 38 of 1978 as confirmed by this Court in R.T. No. 2 of
1979. An order of stay was granted and execution had been stayed.
The petitioner filed a mercy petition on 28-8-1985 addressed to
the President of India. This petition was forwarded from prison
and routed through the Governor of Tamil Nadu. The mercy petition
was rejected by the Governor of Tamil Nadu on 10-12-1985. After
such rejection, the mercy petition was forwarded to the President
of India on 19-12-1985. The mercy petition was rejected by the
President on 21-6-1988. Thus, there has been a delay of 2 years
and 6 months in the disposal of the mercy petition by the President
of India. It is also to be noticed that there is no explanation
why it took 4 months for the State Government to forward the mercy
petition of the petitioner to the President of India.
2. This writ petition was admitted by this Court on 14-10-1985.
In the counter filed by the Joint Secretary to Government, Home
Department, Madras, sworn to on behalf of Respondents 2 to 5,
various dates of the different proceedings in Court have been
listed with a statement that in view of the stay order made by
this Court in W.M.P. No. 15483 of 1985 in W.P. No. 10239 of 1985,
the execution could not be carried out. The affidavit further
states that by letter No. F. 9/1/86 Judicial dated 21-6-1988,
the Under Secretary to Government of India, of Home Affairs, New
Delhi, had informed the Special Commissioner and Secretary to
Government, Home Department, Madras, that the mercy petition preferred
by the petitioner to the President of India had been rejected
and that the President of India was pleased to decline to interfere
on behalf of the condemned prisoner Haja Mohideen. The affidavit
further states that no condemned prisoner was kept in solitary
confinement unless he was under sentence of death based on the
decision of the Supreme Court in Sunil Batra v. Delhi Administration,
AIR 1978 Sc 1675 : (1978 Cri LJ 1741). No explanation has been
offered regarding the delay in consideration of the mercy petition
by the Governor of Tamil Nadu as well as the President of India,
undoubtedly the petitioner having a two pronged right to approach
the Governor and the President for mercy.
W.P. No. 6456 of 1988
3. The petitioner in this writ petition Panchalingam is the friend
of the prisoner Ekambaram, who is now confined in the Central
Prison, Vellore, Ekambaram was tried in S.C. No. 143 of 1983 on
the file of the Court of Session, North Arcot at Vellore, for
having caused the death of his brother Chandran Chettiar, his
two sons and daughters by cutting them one after another with
an axe on the night of 18/19-7-1983 at their residence in Athimakulampalli
village. The trial court sentenced the petitioner to death, by
judgment dated 27th April, 1984, which was confirmed by this Court
in R.T. No. 3 of 1984, by judgment dated 10-9-1984. The petitioner's
approach to the Supreme Court did not yield fruit and on 17-12-1985
the sentence of death stood confirmed. The petitioner preferred
a mercy petition on 5-9-1985 addressed to the President of India.
The mercy petition, which was routed through the Governor of Tamil
Nadu, was considered by the Governor and rejected on 18-10-1985.
The mercy petition was then forwarded by the State of Tamil Nadu
to the President of India on 25-10-1985. The mercy petition was
rejected on 17-5-1988. There was no explanation furnished for
the delay between 18-12-1985 and 17-5-1988, the period during
which the mercy petition was pending before the President of India
after the final verdict of the Supreme Court was rendered on 17-12-1985.
Approximately 2 1/2 years delay stands unexplained. In the counter
filed by the Joint Secretary to the Government, Home Department,
Madras, it is stated that the contention of inordinate delay in
considering the mercy petition being in violation of Art. 21 of
the Constitution of India was untenable. The allegation of the
prisoner being kept in prolonged detention in illegal solitary
confinement was also denied. The independent non-application of
the mind by the President of India alleged in the affidavit of
the petitioner was refuted as untenable. The several dates extracted
earlier form part of the counter-affidavit.
W.P. Nos. 7825 and 7876 of 1988
4. These two writ petitions relate to the prisoner Subramani alias
Subramaniam now confined in Central Prison, Coimbatore. W.P. No.
7825 of 1988 has been filed by one K. M. Subramaniam a practising
Advocate of this court and a staunch member in Kongu Vellala Community
Association at Madras, on behalf of the prisoner, who is also
stated to belong to the same community. This writ petition also
challenges the execution of Nataraya Gounder and Nattudurai, who
also belong to the same community. But as far as those two persons
are concerned, this writ petition is not being disposed of in
view of the impending impleading of the Central Government as
a party, for consideration of their plea raised in this writ petition.
Therefore, W.P. No. 7825 of 1988 will be considered only in respect
of the prisoner Subramaniam, while the consideration of the cases
of the other prisoners will be kept in abeyance.
5. W.P. No. 7876 of 1988 also relates to the prisoner Subramani
alias Subramaniam, this writ petition having been filed on his
behalf by the Secretary, Legal Aid Centre, High Court. Madras.
6. Subramani alias Subramaniam was tried in S.C. No. 5 of 1983
on the file of the Court of Session, Periar Division at Erode,
for having caused the death of Nachimuthu Gounder, Chinnamani
Ammal and Baby on 9-8-1982 at or about 6 p.m. in Thenmugam Kangayampalayam
Village by cutting them with an aruval. By judgment dated 19-9-1983
the trial Judge sentenced Subramani alias Subramaniam to death.
Referred Trial 9 of 1983 clubbed with C.A. No. 787 of 1983 preferred
by the prisoner were together disposed of by this Court on 2-2-1984,
confirming the convictions as well as the sentence imposed on
the prisoner on all three counts of murder. The prisoner filed
a special leave petition before the Supreme Court of India, which
was dismissed on 27-3-1985. A subsequent writ petition filed under
Art. 32 of the Constitution of India in W.P. No. 106 of 1986 for
commuting the sentence of death and questioning the validity of
the death sentence was also dismissed. The prisoner sent a mercy
petition dated 19-4-1985 addressed to the Governor of Tamil Nadu
and the President of India. The Governor of Tamil Nadu rejected
the mercy petition on 21-3-1986. The Tamil Nadu Government forwarded
the mercy petition addressed to the President of India only on
31-3-1986 along with the rejection order of the Governor of Tamil
Nadu. The President of India rejected the plea for mercy on 17-6-1988.
It is apparent from the dates given above that the Governor of
Tamil Nadu had taken approximately 11 months to dispose of the
mercy petition and the State Government had taken more than 11
months to forward the mercy petition of the petitioner dated 19-4-1985
to the President of India. No explanation has been offered for
the long delay in forwarding of the representation of the prisoner
to the President of India, and equally there is no explanation
for the delay of over 2 years and 3 months in the disposal of
the mercy petition by the President of India.
7. In the counter-affidavit filed by the Joint Secretary, Home
Department, Government of Tamil Nadu, it is stated that the Governor
of Tamil Nadu had disposed of the mercy petition of the petitioner
on 21-3-1986 and the allegation that the Governor had not disposed
it of, was incorrect. It is further stated that the delay in execution
was due to the fact of pendency of the prisoner's case before
this Court or the Supreme Court as well as the mercy petition.
The contention in the affidavit of the petitioner that the death
sentence should be commuted to imprisonment for life on account
of delay, according to the counter-affidavit, was untenable.
W.P. No. 7827 of 1988.
8. The petitioner herein is the father of the prisoner Jayaprakash
alias Jayaprakasam. The petitioner's son was tried in S.C. No.
89 of 1984 on the file of the Court of Session, Chingleput under
9 charges, each under section 302 IPC on the allegation that on
24-2-1984 between 3.00 and 10 p.m. at Plot No. 70, Palaniappa
Nagar, he caused the death of the several persons either by beating
with a casuarina stick or throttling their necks or cutting with
a knife. The trial court, by judgment dated 10-10-1984 imposed
death sentence on the prisoner. The appeal preferred by the prisoner
in C.A. No. 703 of 1984 and the Reference R.T. 11 of 1984 were
taken up together by this Court and disposed of on 9-4-1985, confirming
the sentence of extreme penalty awarded by the trial court. The
petitioner moved the Supreme Court of India, which affirmed the
sentence of death confirmed by this Court, on 8-7-1985. On 22-8-1985
the prisoner preferred mercy petitions addressed to the President
of India and the Governor of Tamilnadu, exercising his dual right.
It appears that there was an earlier petition on 1-6-85 for mercy,
addressed to the President before the Judgment of the Supreme
Court dated 8-7-1985 and that will not loom large for consideration
now. The mercy petition dated 22-8-1985 was rejected by the Governor
of Tamil Nadu on 18-10-1985. The mercy petition addressed to the
President of India was forward by the State Government on 25-10-1985
and was rejected by President on 17-6-1988. According to the learned
counsel for the petitioner, the prisoner was informed orally about
the rejection by the President, negative his plea for mercy. It
appears that another mercy petition dated 29-8-1988 on behalf
of the prisoner was sent to the President of India. On behalf
of the State Government it was represented that the prisoner was
informed on 23-11-1988 that there was no ground to consider over
again the mercy petition of the prisoner dated 29-8-1988. The
learned counsel for the petitioner would contend that since the
mercy petition was addressed to the President of India, the alleged
reply by the State Government will not meet the requirements of
law. Needless to state at this stage that delay in consideration
of successive petitions for mercy may not enure in favour of the
prisoner. Therefore, obviously explanation will have to be offered
for the delay in forwarding the mercy petition of the prisoner
to the President as well as for the delay that had occasioned
in the disposal of the mercy petition by the Governor of Tamil
Nadu and the President of India. From the date of the mercy petition
addressed to the President of India till its disposal, a period
of 2 years and 10 months have elapsed. From the date of the forwarding
of the mercy petition to the President of India by the State Government
its disposal, the delay is 2 years and 8 months.
9. In the counter-affidavit filed by the Joint Secretary to the
Government of Tamil Nadu, it is stated that it was not open to
the petitioner to contend that he was not responsible for the
delay in execution and, therefore, the death sentence should be
commuted as imprisonment for life. On the main aspect of delay,
no material is furnished in the counter affidavit, offering an
explanation.
10. Having narrated the facts in all these writ petitions, our
attention will have to be focussed now on the feasibility of issue
of a direction not to carry out the sentence of death and the
possibility of altering it into imprisonment for life.
11. Mr. N. Natarajan, learned senior counsel, Thiru K. V. Sankaran
and Thiru S. Krishnaswami, contended that the petitions for mercy
under Article 72 and 161 of the Constitution of India will have
to be disposed of expeditiously by the Governor of the State and
the President of India and if there was a delay in disposal of
mercy petitions occurring at the instance of the executive, the
sentence of death will become in executable. They would submit
that Article 21 of the Constitution demanded that any procedure,
which takes away the life and liberty of persons, must be reasonable,
just and fair. This procedure of fairness is required to be observed
at every stage and till the last breath of the life. According
to them, in all these writ petitions there is considerably long
delay, which stands unexplained and on that score alone this court
would be justified in commuting the sentence of death on each
one of the prisoners to one of imprisonment for life. They also
contended that this dual right in the case of sentence of death,
whether it be inflicted under any law passed by Parliament or
by the law of the States, the power is vested in both, the President
as well as the State concerned, to commute the sentence. This
was the scheme as explained in the Debates of the Constituent
Assembly. The Debates disclose that if the offence is committed
in a particular locality, the concerned Home Minister would advise
the Governor on a mercy petition from an offender sentenced to
death, for he would be in a better position to tender advice having
regard to his intimate knowledge of the circumstances of the case
and the situation prevailing in that area. Even if the Governor
rejects the mercy petition, it was always open to the offender
to approach the President with another mercy petition and try
his luck. The learned counsel also brought to our notice a few
decisions of the Supreme Court in support of their contentions,
which we will consider at the relevant time in the proper context.
Thiru N. Natarajan referred to the Tamil Nadu Prison Rules, 1983
with a specific emphasis to Rules 915 and 916. These Rules contemplate
the forthwith dispatch to the Commissioner and Secretary to Government,
Home Department by the Superintendent of the Prison, the petition
submitted by the convict for mercy addressed to the Government
of Tamil Nadu and the President of India. If no reply was received
within 15 days from the date of despatch of the petition from
the the prison, the Superintendent should telegraph to the Commissioner
and Secretary to Government, drawing attention to the fact and
in no case execution could be carried out before the receipt of
the formal orders from the Government. The Prison Rules and observations
of the Supreme Court in AIR 1983 SC 465 : (1983 Cri LJ 803) (Sher
Singh v. State of Punjab) was referred to, to impress upon us
the essence of the time factor which would pervade, while dealing
with mercy petitions of prisoners sentenced to death.
12. The learned Advocate-General and Thiry G. Krishnamurti, the
Additional Public Prosecutor took us through the factual details
and contended that in most of these cases, the delay in execution
was due to the successive petitions filed either by the prisoner
himself or through his relations in Courts. They would rely on
the observations of Jagannatha Shetty J., in Triveniben v. State
of Gujarat, AIR 1989 SC 1335 : (1990 Cri LJ 1810) to contend that
the inordinate delay may be a significant factor but that by itself
cannot render the execution unconstitutional. Nor it can be divorced
from the dastardly and diabolical circumstances of the crime itself.
The Court had to still consider the observation in Sher Singh's
case, AIR 1983 SC 465 : (1983 Cri LJ 803) which reads as hereunder.
-
".... 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 its
execution is delayed."
13. The death sentence is constitutionally valid and permissible
within the constraints of the rule in Bachan Singh's case AIR
1980 SC 898 : (1980 Cri LJ 636). The law of the land laid down
by the Supreme Court has to be accepted. In Allauddin Mian v.
State of Bihar, AIR 1989 SC 1456 : (1989 Cri LJ 1466), the Supreme
Court has observed as follows (Para 9) :
"It must at once be conceded that offenders of some particularly
grossly brutal crimes which send tremors in the community have
to be firmly dealt with to protect the community from the perpetrators
of such crimes. Where the incidence of a certain crime is rapidly
growing and is assuming menacing proportions, for example, acid
pouring or bride burning, it may be necessary for the Courts to
award exemplary punishments to protect the community and to deter
others from committing such crimes. Since the legislature in its
wisdom thought that in some rare cases it may still be necessary
to impose the extreme punishment of death to deter others and
to protect the society and in a given case the country, it left
the choice of sentence to the judiciary with the rider that the
Judge may visit the convict with the extreme punishment provided
there exist special reasons for so doing. In the face of this
statutory provision which is consistent with Art. 21 of the Constitution
which enjoins that the personal liberty or life of an individual
shall not be taken except according to the procedure established
by law, we are unable to countenance counsel's extreme submission
of death in no case. The submission that the death penalty violates
Articles 14, 19 and 21 of the Constitution was negatived by this
court in Bachan Singh v. State of Punjab ((1980) 2 SCC 684 : AIR
1980 SC 898 :(1980 Cri LJ 636))"
14. In our judicial system several difficult decisions are left
to the Presiding Officers without providing guiding scales for
the same. We have to analyse the view expressed by the Supreme
Court in a few to those cases brought to our notice, which we
will presently refer to, which, in our view, should form the foundation
or basis for the decision to be arrived at, in these petitions.
15. The earliest of the cases in which the sentence of death was
vacated on the ground that delay exceeding 2 years in the execution
of sentence of death, should be considered sufficient to entitle
the person under sentence of death to invoke article 21 and demand
the quashing of sentence of death, was rendered by the Supreme
Court in T. V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC
361 (2) : (1983 Cri LJ 481). It was held in that case that prolonged
detention to await the execution of a sentence of death is an
unjust, unfair and unreasonable procedure and the only way to
undo the wrong was to quash the sentence of death. The dehumanising
factor of prolonged delay in the execution of a sentence of death,
in the view of the Supreme Court, has the constitutional implication
of depriving a person of his life in an unjust, unfair and unreasonable
way as to offend the constitutional guarantee that no person shall
be deprived of his life or personal liberty except according to
procedure established by law. The Supreme Court further observed
that the "Procedure established by law" does not end
with the pronouncement of sentence and that it included the carrying
out of sentence. Finally it was held.
"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 death should be considered
sufficient to entitle the person under sentence of death to invoke
Article 21 and demand the quashing of the sentence of death"
This view of the Supreme Court in Vatheeswaran's case was dissented
by a Bench of three Judges in Sher Singh v. State of Punjab AIR
1983 SC 465 : (1983 Cri LJ 803). The Supreme Court confirmed the
view that prolonged in execution of a death sentence was unquestionably
an important consideration for determining whether the sentence
should be allowed to be executed, but no hard and fast rule could
be laid down that "delay exceeding two years in the execution
of a sentence of death should be considered sufficient to entitle
the person under sentence of death to invoke Article 21 and demand
the quashing of the sentence of death". To this extent the
decision in "Vatheeswaran's case was overruled. The Supreme
Court in the latter case took note of the fact of common experience
as regards the time generally occupied by proceedings in the High
Court, the Supreme Court and before the Executive Authorities
and, therefore, felt that no absolute or unqualified rule could
be laid down that in every case in which there was a long delay
in the execution of a death sentence, the sentence should be substituted
by the sentence of life imprisonment. The Supreme Court also referred
to the not uncommon practice of the prisoners filing a series
of writ petitions and review petitions challenging judgments and
orders, which had assumed finality, without any seeming justification.
Though death sentence should not, as far as possible, be imposed,
but when it had been imposed in rare and exceptional cases wherein
that sentence was also upheld by the Apex court, the judgment
or order of the court sought not to be allowed to be defeated
by applying any rule of thumb. However, the Supreme Court in Sher
Singh's case took the opportunity to impress upon the Government
of India and the State Governments that petitions filed under
Articles 72 and 161 of the Constitution or under Sections 432
and 433 of the Criminal Procedure Code should be disposed of expeditiously.
As observed in the said decision, a self imposed rule should be
followed by executive authorities rigorously, that every such
petition shall be disposed of within a period of three months
from the date on which it was received. Long and interminable
delays in the disposal of these petitions were a serious hurdle
in the dispensation of justice and indeed, such delays tended
to shake the confidence of the people in the very system of justice.
16. The Supreme Court finally held that no less important was
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 was vacated,
are matters which must enter into the verdict as to whether the
sentence should be vacated for the reason that its execution had
been delayed. After the decision in Sher Singh's case (1983 Cri
LJ 803), the very same question of delay in execution of a death
sentence for more than two years and invoking the aid of Article
21 came up for consideration before a Division Bench of two Judges
in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR
1985 SC 231 : (1984 Cri LJ 1909), which included Chinnappa Reddy,
J., who was a party to the decision rendered in Vatheswaran's
case, AIR 1983 SC 361 (2) : (1983 Cri LJ 481). In that case the
sentence of death, was hanging over the head of the prisoner for
about two years and nine months. Observing that the Referred Trials
and Confirmation cases were dealt with speedily by High Courts
and only when they reached the Supreme Court delay occurred and
that surely inability of the Supreme Court to devise a procedure
to deal expeditiously with such matters of life and death can
be no justification for silencing "the voice of justice and
fair play" which demanded that "so long as life lasts,
so long shall it be the duty and endeavor of the Supreme Court
to give to the provisions of the Supreme Court to give to the
provisions of the Constitution a meaning which would prevent human
suffering and degradation". The learned Judges observed that
when the Supreme Court sat in Divisions of 2 and 3 Judges for
the sake of convenience, it may be inappropriate for a Division
Bench of three Judges to purport to overrule the decision of a
Division Bench of two Judges. In Javed Ahmed's case, on being
satisfied on an overall view of all the circumstance, the Court
held that the petitioner in that case was entitled to invoke the
protection of Article 21 of the Constitution. The sentence of
death was quashed and the sentence of imprisonment of life was
substituted
17. In Kehar Singh v. Union of India, AIR 1989 SC 653 : (1989
Cri LJ 941), the Supreme Court remarked that to any civilised
society, there can be attributes more important than the life
and personal liberty of its members and that was evident from
the paramount position given by the Courts to Article 21 of the
Constitution. These twin attributes of life and personal liberty
enjoyed a fundamental ascendancy over all other attributes of
the political and social order and consequently, the Legislature,
the Executive and the Judiciary were more sensitive to them than
to the other attributes of daily existence. The deprivation of
personal liberty and the threat of the deprivation of life by
the action of the State is in most civilised societies regarded
seriously and recourse, either under express constitutional provision
or through legislative enactment is provided to the judicial organ.
18. The important question whether prolonged delay in execution
of death sentence, rendered death sentence inexecutable and entitled
the accused to demand the alternate sentence of life imprisonment
was considered by a five Judge Bench of the Supreme Court in Smt.
Triveniben v. State of Gujarat, AIR 1989 SC 1335 : (1990 Cri LJ
1810) to resolve the conflict in the views expressed in Vatheeswaran's
case, AIR 1983 SC 361 (2) : (1983 Cri LJ 481) and Sher Singh's
case, AIR 1983 SC 465 : (1983 Cri LJ 803). The Supreme Court in
Triveniben's case overruled the earlier decision in Vatheeswaran's
case, AIR 1983 SC 361 (2) : (1983 Cri LJ 481) to that extent,
that no fixed period of delay could be held to make the sentence
of death inexecutable. In this case Jagannatha Shetty, J., while
concurring with the majority view, chose to consider independently
the various facets of this question placed before the Supreme
Court. The majority view was rendered by Oza. J., The law laid
down by the majority is clear and categoric that so long as the
matter was pending in any Court before final adjudication, the
person who had been condemned or who had been sentenced to death
had a ray of hope. Therefore, it was the opinion of the Supreme
Court that it could not be contended that a person suffered that
mental torture which a person suffered when he knew that he was
to be hanged, but was waiting for the Dooms-Day. The delay which
could, therefore, be considered while dealing with the question
of communication of sentence of death into one of the life imprisonment
could only be from the date of pronouncement of judgment by the
apex court when the judicial process had come to an end. The Court
observed that undue long delay in execution of the sentence of
death would entitle the condemned person to approach the Supreme
Court under Article 32, but court would only examine the nature
of delay caused and circumstances ensued after sentence was finally
confirmed by the Judicial process and will have no jurisdiction
to re-open the conclusion reached by the court while finally maintaining
the sentence of death. However, the court may consider the question
of inordinate delay in the light of all circumstances of the case
to decide whether the execution of the sentence of death should
be carried out or should be altered into imprisonment for life.
No fixed period of delay could be held to make the sentence of
death inexecutable.
19. In this context it will be relevant to extract the majority
opinion, which forms part of paragraph 22 of the Judgment -
"...... 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 pronounced and it is because of this that on the ground of
long or inordinate delay a condemned prisoner could approach this
Court and that is what has consistently been held by this court.
But it will not be open to this Court in exercise of jurisdiction
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
circumstances could be held to be sufficient for coming to a conclusion
that execution of the sentence of death will not be just and proper.
The nature of the offence, circumstances in which the offence
was committed will have to be taken as found by the competent
court while finally passing the verdict. It may also be open to
the court to examine or consider any circumstances after the final
verdict was pronounced if it is considered relevant. The question
of improvement in the conduct of the prisoner after the final
verdict also cannot be considered for coming to the conclusion
whether the sentence could be altered on that ground also.
The Supreme Court held that after the matter was finally decided
judicially, it was open to the person to approach the President
or the Governor, as the case may be, with a mercy petition. Repeated
mercy petitions and time spent on petitions for review at the
instance of the convicted person shall not be taken note of while
considering the question of delay after the pronouncement of the
final judicial verdict. The only legitimate remedy which the person
would be entitled, is to seek the jurisdiction of the court on
the prolonged and undue delay in the consideration of the mercy
petition by the executive The Court would only examine the nature
of the delay caused and the circumstances that had ensued after
the sentence was finally confirmed by the judicial process. The
Supreme Court expected the concerned authorities, who received
petitions under Article 72 or 161 to have them disposed of expeditiously.
20. It will be equally necessary to extract the observations of
Jagannatha Shetty, J. in Triveniben's case (1990 Cri LJ 1810)
in his concurring judgment in paragraph 73 :-
".... The person who complains about the delay in the execution
should not be put to 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 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 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
be divorced from the dastardly and diabolical circumstances of
the crime itself. The Court has still to consider as observed
in Sher Singh case (at p. 596 of 1983 (2) SCR 582 : (at p. 472
of AIR 1983 SC 465) :-
"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 its execution is
delayed."
21. There is an apparent divergence in the view expressed by the
majority and the concurring view expressed by Jagannatha Shetty,
J. While the majority of the judges hold that it would not be
open to the Supreme Court to go behind or to examine the final
verdict reached by a competent court, convicting and sentencing
a condemned prisoner and even while considering the circumstances
in order to reach a conclusion as to whether the inordinate delay
coupled with the subsequent circumstances could be held to be
sufficient for coming to a conclusion that the execution of sentence
of death would not be just and proper. The nature of the offence,
the circumstances in which the offence was committed 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 consider
any circumstances after the final verdict was pronounced, if it
was considered relevant, though the improvement in the conduct
of the prisoner after the final verdict, cannot be considered
for coming to the conclusion whether the sentence could be altered
on that ground also. But Jagannatha Shetty, J., has expressed
his view that inordinate delay may be a significant factor, but
that by itself could not render the execution unconstitutional.
Nor it can he divorced from the dastardly and diabolical circumstances
of the crime itself and has quoted the observations in Sher Singh's
case that 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 concerned
vacation of the death sentence on the ground of delay in execution.
22. If as observed by the majority, the nature of the offence,
the circumstances in which the offence was committed will have
to be taken as found by the competent Court while finally passing
the verdict, this would take in a dastardly and diabolical circumstances
of the crime itself within its fold. Equally the verdict of the
Court, while holding that extreme penalty was the just sentence,
must be deemed to have taken note of all the circumstances pin-pointed
in Sher Singh's case (1983 Cri LJ 803) (SC). Therefore, in view
of the limited option, following the binding view of the majority
in "Triveniben" case (1990 Cri LJ 1810) (SC), we conclude
that it will not be open for us to consider the nature of the
offence or the circumstances under which the offence was committed
which will have to be taken note of as found by the Courts while
they have verdicted finally. Even while reaching a conclusion
as to whether inordinate delay coupled with the subsequent circumstances
could be held to be sufficient to substitute life imprisonment
for the death penalty, it will not be open for us to go behind
or to examine the final verdict reached by the competent court
which had considered all the circumstances while convicting and
sentencing the condemned prisoner. We will be left with the only
consideration of the delay on the part of the executive after
the finality of the judicial process. The last of the cases in
which the Supreme Court had to consider this important question
of a speedy trial as a part of one's fundamental right under Article
21 of the Constitution to life and liberty which liberty was no
less important for disposal to the mercy petition in execution
of the sentence of death is enunciated in Madhu Mehta v. Union
of India, (1989) 3 Crimes 104 : (1989 Cri LJ 2321).
23. In the aforestated case, the Supreme Court held, that it was
well-settled that undue long delay in execution of the sentence
of death would entitle, the condemned person to approach the Supreme
Court under Article 32 of the Constitution, but that Court would
only examine the nature of delay caused and circumstances that
ensured after sentence was finally confirmed by the judicial process
and will have no jurisdiction to reopen the conclusions reached
by the Court while finally maintaining the sentence of death.
But the Court was entitled and indeed obliged to consider the
question of inordinate delay in the light of all circumstances
of the case to decide whether the execution of sentence should
be carried out or should be altered into imprisonment for life.
No fixed period of delay can be considered to be decisive. 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. Endorsing the views of
Jagannatha Shetty J., in Triveniben case (1990 Cri LJ 1810) that
as between funeral fire and mental worry, it is the latter which
was more devastating, for funeral fire burns only the dead body
while the mental worry burns the living one, held on the facts
of that case that the mental agony suffered by the convict, living
under the shadow of death for long, far too long should be put
an end to by altering the sentence into one of imprisonment for
life.
24. The view of the Supreme Court in "Madhu Mehta's"
case (1989 Cri LJ 2321) further confirm the conclusion we have
arrived at that we will have no jurisdiction to reopen the conclusions
reached by the court while finally maintaining the sentence of
death and it will not be open for us to consider the nature of
the offence and circumstances under which it was committed, while
apply for mind to the limited scope of the right of the prisoner
to a lesser sentence in view of the executive delay.
25. It was observed that delay defeats justice. In that background
let us look into the facts in these writ petitions.
26. In each one of these writ petitions we have extracted already,
the dates on which the death sentences were confirmed, reaching
finality in the judicial process. We have also pointed out the
dates of filing of the mercy petitions in each one of those cases
as well as the dates on which either the Governor of Tamil Nadu
or the President of India had disposed of those petitions. To
take a second look in W.P. No. 10239 of 1985, the death sentence
imposed on the prisoner was confirmed by the Supreme Court on
12th April, 1982, and even his review petition was dismissed on
15-1-1985. The mercy petition dated 28-8-1985 addressed to the
President of India was forwarded from prison, routing it through
the Governor of Tamil Nadu to the President of India. The plea
for mercy was rejected by the Governor on 10-12-1985 and only
thereafter on 19-12-1985 the mercy petition of the prisoner dated
28-8-1985 was forwarded to the President of India. Though there
is no explanation for the delay of about 3 1/2 months in the disposal
of the mercy petition by the Governor of Tamil Nadu, it may not
readily benefit the prisoner. At the same time, it will be better
to point out to the executive the observations of the Supreme
Court in Sher Singh case (1983 Cri LJ 803) that the self imposed
rule should be followed by the executive authorities rigorously,
that every such petition filed under articles 72 and 161 of the
Constitution shall be disposed of within three months from the
date on which such petitions received. However, it is rather strange
that the respondents had not chosen to explain why the petition
addressed to the President of India by the prisoner was kept in
cold-storage for approximately four months before it was forwarded
to the President of India. Ultimately the mercy petition was rejected
by the President on 21-6-1988. From the date of the mercy petition
till its disposal by the President, two years and 10 months have
elapsed and from the date of its receipt by the President, before
its disposal, a time lag of two years and six months had ensued.
Unfortunately no explanation is forthcoming for this unduly long
in the disposal of the mercy petition preferred by the prisoner.
27. In the case pertaining to W.P. No. 6456 of 1988, the judicial
process leading to the confirmation of the extreme penalty of
law imposed on the prisoner stood terminated on 17-12-1985. The
mercy petition dated 5-9-1985 addressed to the President of India
and routed through the Governor of Tamil Nadu was rejected by
the latter on 18-10-1985. Subsequently the mercy petition was
forwarded by the State Government to the President of India on
25-10-1985 and was rejected by the latter on 17-5-1988. A delay
of 2 1/2 years in the disposal of the mercy petition stands completely
unexplained.
28. In the case pertaining to W.P. Nos. 7825 and 7826 of 1988
the sentence of death imposed on the prisoner was confirmed by
the Supreme Court on 27-3-1985 and the petition under Article
32 of the Constitution filed by the prisoner was also rejected.
The mercy petition dated 19-4-1985 addressed to both the Governor
and the President of India was rejected by the former on 21-3-1986
and by the latter on 17-6-1988. Thus, there is a long and unexplained
delay of about 11 months in the disposal of the mercy petition
by the Governor and a delay of 3 years and 2 months in its disposal
by the President of India. Even if we exclude the period between
19-4-1985 and 31-3-1986 during which period the State Government
kept the mercy petition of the prisoner addressed to the President
of India without bestowing any attention, still there is a delay
of over 2 years and 3 months in the disposal of the mercy petition
of the prisoner by the President of India. No explanation has
been offered either for the delay in forwarding of the mercy petition
by the State Government to the President of India, nor for the
delay in the disposal by both the authorities.
29. In the case pertaining to W.P. No. 7827 of 1988, the Supreme
Court confirmed the sentence of death on 8-7-1985. The mercy petition
which will be relevant for consideration was sent on 22-8-1985
addressed to both the constitutional authorities. The Governor
of Tamil Nadu negatived the plea for mercy on 18-10-1985 and only
thereafter on 25-10-1985 the mercy petition of the prisoner, which
was two months old by then was forwarded to the President of India.
The rejection by the President was on 17-6-1988. Thus, there is
an unexplained delay of 2 years and 8 months in the disposal of
the mercy petition by the President of India from the date of
its receipt and 2 months more will have to be added to it due
to inaction of the State Government in forwarding the mercy petition
of the prisoner to the President.
30. The executive power is pre-conditioned by its duty to be fair
and quick. The principle of speedy trial in criminal cases implicit
in the broad sweep and content of Article 21 is no less important
for the disposal of the mercy petition. The expeditious consideration
contemplated should reflect a sense of urgency in the executive
and though it will be neither possible nor advisable to lay down
a strait jacket formula uniformally applicable to all the cases,
the period of time within which mercy petitions will have to be
disposed of, the Court will have to consider judicially on the
available material the gap between the receipt of the representation
and its consideration by the executive. If the time lag is so
unreasonably long and the explanation, if any, offered is unsatisfactory,
the Court will have to necessarily intervene to put an end to
the mental agony of the prisoner. In the context of the Tamil
Nadu Prison Rules fixing a fifteen day period for remanding the
Government about the pendency of a mercy petition, taken in conjunction
with the observation of the Supreme Court in Sher Singh case,
(1983 Cri LJ 803), suggesting a self-imposed rule to dispose of
such petitions within three months, would amply indicate that
the context implies anxious care on the part of the executive
of perform its duty in this respect as early as practicable, without
avoidable delay.
31. In none of these cages even an attempt had been made to explain
the long delay. Can it not be then for no acceptable reason at
all ? The Court is handicapped in not having any material to scrutinise
if there were acceptable reasons for the executive delay. As per
the law of the land, the only delay which would be material for
consideration will be the delay in the disposal of the mercy petitions
or the delay occurring at the instance of the executive. Lack
of explanation for the undue delay strikes at the very root or
foundation, necessitating the Court to enter a verdict in favour
of the prisoner.
32. Death sentence is constitutionally valid and permissible within
the constraints of the rule laid down in Bachans Singh case, AIR
1980 SC 898 : (1980 Cri LJ 636) and it may be necessary for the
Courts to award exemplary punishments in certain crimes to protect
the community and deter others for committing such crimes. Further
if the award of extreme penalty in rare and exceptional class
of cases, wherein death sentence had been judicially upheld as
well, if such judgment or order ought not to be allowed to be
defeated, the constitutional authorities and the executive will
have to be conscious of the expeditious role that they have to
play in the context of the mental agony that the prisoner, who
had sought for mercy, was undergoing. Unless that awareness gets
reflected by quick disposal of the petitions for mercy, retaining
death sentence in the statute book, may become an empty formality.
33. We have in extenso extracted the views of the Supreme Court
in the cases referred before us and applying those principles
laid down, we are satisfied that the great deal of mental worry
suffered by each one of the prisoners for a long period had not
been sought to be justified by acceptable reasons and hence the
only option open to us on the facts unfurled in all these cases,
will be to direct that the death sentence should not be carried
out on each one of these prisoners and the sentence imposed on
them be altered into one of imprisonment for life. These writ
petitions are disposed of with the aforesaid directions.
Order accordingly.
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