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PETITIONER: MADHU MEHTA

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT09/08/1989

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RAY, B.C. (J)

CITATION:  1989 AIR 2299            1989 SCR  (3) 774  1989 SCC  (4)  62        JT 1989 (3)   465  1989 SCALE  (2)300

ACT:     Constitution   of   India--Articles  21,  32,   72   and 161--Undue   long   delay  in  execution  of   sentence   of death--Sentence can be altered to imprisonment for  life--No fixed  period  of delay can be  considered  decisive--Speedy trial--Part of fundamental right to life and liberty.

HEADNOTE:     This  Petition under Article 32 of the Constitution  has been filed by one Madhu Mehta National Convenor of Hindusta- ni Andolan and a Social worker praying for a writ of  Habeas Corpus  or an appropriate direction in regard to  one  Gyasi Ram  s/o Param aged 60 years, who, is stated to  be  waiting for  a  decision on his mercy petition by the  President  of India for about 8 or 9 years. He is stated to be confined in the  Death  Cell, Central Jail,  Jhansi.  The  Circumstances under  which the Writ Petition has been filed may be  stated thus:     Gyasi  Ram  was convicted under Section  302,  IPC.  and sentenced to death by Sessions Judge, Jhansi on October  19, 1978  for committing the Cold-blooded murder of one  Bhagwan Singh, a Government servant. One Daya Ram was also associat- ed  with him for the Commission of the said Crime,  who  had escaped.  The death sentence awarded to Gyasi Ram  was  con- firmed both by the High Court as also by this Court.     On  18.12.1981,  the  wife of Gyasi Ram  filed  a  mercy Petition before the President of India which remained undis- posed till the filing of this Writ Petition.     It  appears that mercy petitions presented by Gyasi  Ram on 6.10.1981 and 26.11.1981 were rejected by the Governor of the State and were received in the Ministry of Home  Affairs on 5.12.1981 for consideration by the President of India. On 21.4.1983, the mercy petitions were put up for orders before the  President,  and  the President returned  the  file  for further consideration.     In the meantime, information was received by the Govern- ment  from  the  Registry of this Court that  Daya  Ram  s/o Moolchand had also 775 filed  a Special Leave Petition against the  Judgment  dated 17.10.1984  of  the Allahabad High Court whereby  the  death

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sentence  imposed upon him was confirmed.  Subsequently  two mercy petitions were filed on his behalf which were forward- ed  to  the Governor of the State for consideration  in  the first  instance on 9.4.84 and 9.8.85, which remained  undis- posed.     In the Counter-affidavit filed on behalf of the Union of India  attempt  has  been made to explain  this  long  delay occurred  in the disposal of the mercy  petitions--the  main reason, amongst others, that is attributed to the long delay in  ’disposing of the mercy petitions of Gyasi Ram,  is  the pendency of the mercy petitions filed by Daya Ram, with  the Governor  of  the  State, in regard to which  the  Union  is stated  to  be in touch and Correspondence  with  the  State Government. It is said that the decision on the mercy  Peti- tion moved on behalf of Daya Ram has a direct bearing to the decision  to  be taken on the petitions moved on  behalf  of Gyasi Ram. It was only on 15.3.89, the Union Government  had been  informed on telex that the mercy petition of Daya  Ram has since been disposed of.     The Sessions Judge, Jhansi had visited the said  convict in  Jail  on  22.5.88 and had sent a report  to  the  effect "Gyasi’s  mental state is such that he might commit  suicide by  hanging  his  head on the iron grill of his  ceil  if  a decision on his mercy petition is not taken soon."     Thereafter  the  instant Petition has  been  filed.  The question that arose for determination by this Court, in  the facts  and Circumstances, of the case was whether by  reason of  the  long delay in the execution of the  death  sentence awarded  to Gyasi Ram, he was entitled to  any  commutation, alteration in his sentence in view of this Court’s Judgments in  T.V. Vatheeswaran v. State of Tamil Nadu, [1983]  2  SCR 348  and Sher Singh & Ors. v. The State of Punjab, [1983]  2 SCR 582. Allowing the Writ Petition, this Court,     HELD:  Undue long delay in execution of the sentence  of death  would entitle the condemned person to  approach  this Court or to he approached under Article 32 of the  Constitu- tion  but this Court would only examine the nature of  delay caused and circumstances that ensued after the sentence  was finally  confirmed by the Judicial process and will have  no jurisdiction to re-open the conclusions reached by the Court while finally maintaining the sentence of death. [782G] The  Court  is entitled and indeed obliged to  consider  the question 776 of inordinate delay in the light of all circumstances of the case  to decide whether the execution of sentence should  he carried out or should he altered into imprisonment for life. No  fixed period of delay can he considered to be  decisive. [782H-783A]     Speedy  trial  in  Criminal cases though may  not  he  a fundamental  right, is implicit in the broad sweep and  con- tent of Article 21. Speedy trial is part of one’s  fundamen- tal right to life and liberty. [783B]     There  is  no justifiable ground for keeping  the  mercy petition  of Daya Ram and Gyasi Ram pending for such a  long time. In the half yearly return dated 8th October, 1985, and thereafter  in  the successive half yearly  returns  of  the Uttar  Pradesh Government upto 16th Jan., 1989,  year  after year,  the  Mercy Petitions of Daya Ram were shown  to  have remained  unattended  and undisposed  and  consequently  the Mercy  Petition made to the President of India by Gyasi  Ram was also undisposed. [781B]     The time and the manner in which the Mercy Petition  has been  dealt with in this case in respect of Gyasi  Ram  make

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sad  reading and speak of the deplorable lack of  speed  and promptitude  which in these matters should he there. In  the meantime,  there is no denying the fact that Gyasi  Ram  has suffered a great deal of mental pain and agony. [781C]     The  Convict has suffered mental agony of  living  under the  shadow of death, for long far too long. He  should  not suffer that agony any longer. [783D]     The  Court directed that the death sentence  imposed  on Gyasi Ram be altered to imprisonment for life. [783E]     Bachan  Singh v. State of Punjab, [1983] 1 SCR 1451  and Smt.  Triveniben  v.  State of Gujarat, [1989]  1  SCC  678, referred to.

JUDGMENT:     CRIMINAL  ORIGINAL  JURISDICTION: Writ  Petition (Crimi- nal) No. 2 16 of 1989 (Under Article 32 of the Constitution of India) Surya Kant and M.C. Mehta for the Petitioner.     Anil  Dev Singh, Girish Chandra, Ms. A.  Subhashini  and Dalveer Bhandari for the Respondent. 777 The Judgment of the Court was delivered by     SABYASACHI MUKHARJI, J. This is a petition under Article 32 of the Constitution filed by one Madhu Mehta, who is  the National  Convenor  of Hindustani-  Andolan.  This  petition seeks  a writ of Habeas Corpus or an  appropriate  direction with regard to one Shri Gyasi Ram, S/o Shri Param aged above 60  years, who, it is claimed, has been waiting decision  on his Mercy Petition pending before the President of India for about  8 or 9 years. The said Gyasi Ram was at all  relevant time lodged in "DEATH CELL, CENTRAL JAIL" JHANSI having been convicted  for  an offence punishable under section  302  of Indian  Penal  Code and sentenced to death  by  the  learned Sessions Judge, Jhansi on October 19, 1978. It appears  that Gyasi  Ram  was  convicted and sentenced  to  death  by  the learned  Sessions  Judge, Jhansi on 19th October,  1978  for committing  murder, which has been described by  the  Under- Secretary  (Judicial),  Ministry of Home Affairs,  Govt.  of India, as the ’cold blooded murder’ of a Government servant, namely,  Bhagwan Singh, who was the resident  of  Mauranipur Tehsil,  in District Jhansi, Uttar Pradesh. There then  were arrears of land revenue due from Gyasi Ram and also one Mool Chand. For the purpose of realising the said arrears of land revenue,  their property was attached by Amin Bhagwan  Singh and  the same was put to sale by auction. The  auction  took place on 26th December, 1976 and after the auction while the said  Amin  was returning along with his  Peon  Sripat  from village Kakwara after delivering the sale certificate to the auction  purchaser, they were way laid by Daya Ram  (son  of Mool  Chand)  and Gyasi Ram, the convicts involved  in  this case.  In the evidence, it was stated that Daya Ram who  was armed  with pistol fired at the deceased Amin Bhagwan  Singh who fell down from his cycle. While Daya Ram held down  Amin Bhagwan  Singh, Gyasi Ram, the person about whom this  peti- tion is concerned, cut Bhagwan Singh’s throat with the sword he  was  carrying and inflicted other injuries  also.  After this  incident,  both Daya Ram and Gyasi Ram,  it  has  been stated,  escaped. Gyasi Ram was, however,  arrested,  tried, convicted and sentenced to death, as mentioned hereinbefore. The  death sentence was passed on Gyasi Ram by  the  learned Sessions  Judge  on 19th October, 1976. The  Allahabad  High Court confirmed this death sentenced on 28th February, 1979. This Court dismissed his Criminal Appeal No. 362/79 on  17th

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March,  1981.  Mercy Petition was filed by the wife  of  the convicted to the President of India on 18th December,  1981. It  appears that Mercy Petition has still not been  disposed of.  Daya  Ram had absconded and could not be put  on  trial along  with Gyasi Ram. It appears further that  Gyasi  Ram’s Mercy Petitions dated 6th October, 778 1981  and 26th November, 1981 were rejected by the  Governor of  Uttar  Pradesh on the 26th November, 1981 and  were  re- ceived in the Ministry of Home Affairs on the 5th  December, 1981  for the consideration of the President of India.  From the affidavit filed on behalf of the Government of India, it appears  that after processing the case, the matter was  put up before the President of India on 21st April, 1983 for his orders  on the Mercy Petitions and that the President  after examining  the  case file, returned the file on  30th  July, 1983  for further consideration. While the Ministry of  Home Affairs  was processing the case of Gyasi Ram  further,  the intimation  was received from this Court on  13th  November, 1984  that  Daya  Ram, son of Mool Chand had  also  filed  a Special Leave Petition against the judgment date 17th  Octo- ber, 1984 of the Allahabad High Court by which the  sentence of death was confirmed on him. It appears from the order  of this  Court dated 18th February, 1985 dismissing Daya  Ram’s Special  Leave  Petition  that this Daya Ram  was  the  same person who was Gyasi Ram’s partner in the crime as mentioned hereinbefore. Subsequently, .two Mercy Petitions were  filed on behalf of Daya Ram which were forwarded for the consider- ation of the Governor of Uttar Pradesh in the first instance by  the Ministry of Home Affairs dated 9th April,  1984  and 9th August, 1985 respectively. These still remain undisposed of.  It  has been asserted on behalf of  the  Government  of India  in  the  half-yearly return dated  8th  August,  1985 submitted  by  the Government of Uttar Pradesh that  it  was reported  that they had received a Mercy Petition from  Daya Ram. Thereafter, in successive half-yearly reports, the last of  these being dated 16th January, 1989, the State  Govern- ment had been saying that the Mercy Petition of Daya Ram was still under consideration. It is the version of the  Govern- ment that in view of the implications of Daya Ram and  Gyasi Ram in the same crime, it was considered, it is stated, that the decision on the Mercy Petition of Daya Ram by the Gover- nor  of  Uttar Pradesh would have a direct  bearing  on  the consideration  of  the Mercy Petition of Gyasi  Ram  by  the President  of  India.  It  was,  accordingly,  felt,  so  it is .asserted, that it was desirable to await the decision of the Governor of Uttar Pradesh on Daya Ram’s Mercy  Petition. But  it  was only on 18th January, 1989 that by  a  Wireless Message,  the Central Government asked the State  Government to let the Ministry of Home Affairs know the decision of the Governor on Daya Ram’s Mercy Petition and to send it immedi- ately  for consideration of the President of India  so  that the  cases  of  Gyasi Ram and Daya Ram  could  be  submitted together to the President. But the Government did not  move. It  is further stated that in reply to the Wireless  Message of  18th  January,  1989 the State  Government  through  its letter  dated  1st February, 1989 intimated that  the  Mercy Petition of 779 Daya  Ram was still under consideration.  Thereafter,  there was another request to the Chief Secretary by  demi-official letter  of the Ministry of Home Affairs dated 3rd  February, 1989 to expedite consideration of Daya Ram’s Mercy Petition. And  upon this, it is stated that by a telex  message  dated 15th  March, 1989, the State Government had  intimated  that

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the  Governor of Uttar Pradesh had rejected the Mercy  Peti- tion  and that formal letter of State Government would  fol- low. It was stated on behalf of the Government of India that Mercy  Petition of Daya Ram was received by the Ministry  of Home  Affairs on 21st March, 1989 along with the letter.  In the  affidavit, it is stated that after  collecting  certain further  information  from the Supreme Court  Registry,  the Ministry of Home Affairs "was now ready to process the Mercy Petitions  of Gyasi Ram and Daya Ram and submit the same  to the President of India for consideration". The deponent  was good enough to state in the affidavit that the delay  factor would  be kept in view while taking a final decision in  the case  of  Gyasi Ram and he was fully aware of the  agony  of Gyasi  Ram and members of his family. It was stated that  in view  of  the reasons stated above, it was not  possible  to avoid the delay.     The learned District and Sessions Judge, Jhansi had,  in the meantime, visited the said convict Gyasi Ram in jail  on 22nd May, 1988 and had sent a report to the Inspector Gener- al of Prisons stating "Gyasi’s mental state is such that  he might  commit suicide by hanging his head on the iron  grill of his cell if a decision on his petition is not taken soon. If  he is to be hanged, it should be done without any  delay or  he should be released". The Inspector  General’s  Office further  sent  an official to Delhi to  expedite  the  case. Thereafter, this petition was filed for the condemned  pris- oner.  Gyasi Ram, until the orders of this Court  passed  in these  proceedings  on the 3rd May, 1989, was  kept  in  the Death  Cell  and it is only pursuant to the orders  of  this Court that the prisoner was allowed to stay in the  Ordinary Cell during the day time. The petitioner moved this Court on 11th  April,  1989 and the notice was issued  returnable  on 19th  April, 1989. Time was taken to file affidavit and  the order  of  this Court dated 3rd May, 1989  was  passed.  The matter was adjourned for three months. Affidavits have  been filed  but his Mercy Petition still remains  undisposed  of. The question is: what is to be done? This question of  delay in  these matters has been examined by this Court from  time to  time, and how far delay in execution of  death  sentence necessitates  the commutation of the death sentence  or  re- lease  of the condemned prisoner, has been a matter of  some controversy  and  debate. In T.V. Vatheeswaran v.  State  of Tamil Nadu, [1983] 2 SCR 348, a bench of two learned  Judges considered this 780 aspect. Speaking for this Court, Chinnappa Reddy, J.  stated in that decision that Article 21 of the Constitution enjoins that  any procedure, which deprives a person of his life  or liberty must be just, fair and reasonable. It implies humane conditions of detention, preventive or punitive.  ’Procedure established  by law’ does not end with the pronouncement  of sentence;  it  includes the carrying out of  sentence.  Pro- longed  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 is to quash the sentence  of death. Reddy, J. was of the view that the sentence of  death is one thing; sentence of death followed by lengthy  impris- onment  prior to execution is another. A period  of  anguish and  suffering is an inevitable consequence of  sentence  of death,  but a prolongation of it beyond the  time  necessary for appeal and consideration of reprieve is not. And it  was no answer to say that the man would struggle to stay  alive. It was, therefore, found in that case that a delay exceeding two years in the execution of a sentence of death should  be considered  sufficient to entitle the person under  sentence

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of death to invoke Article 21 and demand the quashing of the sentence  of  death. This Court did so and  substituted  the sentence  of  imprisonment in that case. That  decision  was rendered on 16th February, 1983. The validity of that  deci- sion did not last long. On 24th March, 1983, in Sher Singh & Ors.  v. The State of Punjab, [1983] 2 SCR 582, a  bench  of three  learned Judges of this Court held that the  prolonged delay in the execution of a death sentence is unquestionably an  important  consideration  for  determining  whether  the sentence  should be allowed to be executed. But no hard  and fast  rule that ’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’ can  be laid  down as has been done in Vatheeswaran’s case  (supra). It  is  not necessary, therefore, to go into the  aspect  of this  matter  any more. Chief Justice  Chandrachud  observed that a self imposed rule should be followed by the executive authority  rigorously  that every mercy petition  should  be disposed of within a period of three months from the date on which  it was received. Long and interminable delay  in  the disposal  of these petitions, it was observed,  are  serious hurdles  in  the dispensation of justice  and  indeed,  such delays  tend  to shake the confidence of the people  in  the very  system  of justice. The learned Chief  Justice  stated that undoubtedly, the executive has the power, in  appropri- ate  cases, to act under the aforesaid provisions  but,  all exercise  of power is preconditioned by the duty to be  fair and  quick. Delay defeats justice, it was observed. In  this background,  we  have to consider the reasons given  in  the affidavit in this case. We have set out the 781 reasons advanced on behalf of the Government. They are  self explanatory.  These  do not, in our  opinion,  indicate  any justifiable  ground for keeping the Mercy Petitions of  Daya Ram  and Gyasi Ram pending for such a long time. Indeed,  it is  not disputed from the affidavit of the Under  Secretary, Ministry  of Home Affairs, Government of India that  in  the half yearly return dated 8th October, 1985 and thereafter in the  successive  half-yearly returns of  the  Uttar  Pradesh Government  upto  16th January, 1989 year  after  year,  the Mercy  Petitions of Daya Ram remained unattended and  undis- posed  of  and consequently the Mercy Petition made  to  the President  of  India by Gyasi Ram was also  undisposed.  The time  and  the manner in which the Mercy Petition  has  been dealt  with  in this case in respect of Gyasi Ram  make  sad reading and speak of the deplorable lack of speed and promp- titude which in these matters should be there. In the  mean- time,  there is no denying the fact that Gyasi Ram has  suf- fered  a great deal of mental pain and agony. His  condition has been described by the learned Sessions Judge as indicat- ed  hereinbefore. Whether death sentence is the  appropriate punishment for the crime of murder, cold blooded in  certain cases,  is  another debate. This Court in  Bachan  Singh  v. State of Punjab, [1983] 1 SCR 145 at page 221 of the report, observed as follows:               "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 302, IPC on the ground of  reasonable-               ness in the light of Articles 19 and 21 of the               Constitution,, it is not necessary to  express

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             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               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 death  penalty  in               the  impugned provision is totally  devoid  of               reason  and purpose. If,  notwithstanding  the               view of Abolitionists to the contrary, a  very               large  segment  of  people,  the  world  over,               including sociologists, legislators,  jurists,               judges and administrators still firmly believe               in the worth and necessity of capital  punish-               ment for the protection of society, if in  the               perspective of prevailing crime conditions  in               India, contemporary public               782               opinion   channelised  through  the   people’s               representatives in Parliament, has  repeatedly               in  the last three decades, rejected  all  at-               tempts,  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 the framers of  the               Indian  Constitution were fully aware  ...  of               the  existence of death penalty as  punishment               for  murder,  under the Indian Penal Code,  if               Thirty-fifth 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               sentencing procedure on conviction for  murder               and  other  capital offences were  before  the               Parliament  and  presumably considered  by  it               when  in  1972-73 it look up revision  of  the               Code  of 1898 and replaced it by the  Code  of               Criminal  Procedure, 1973, it is not  possible               to hold that the provision of death penalty as               an  alternative  punishment  for  murder,   in               section  302, Penal Code is  unreasonable  and               not  in the public interest. We would,  there-               fore, conclude that the impugned provision  in               section  302, violates neither the letter  nor               the ethos of Article 19."     In  that  decision, Bhagwati, J. (as the  learned  Chief Justice  then was), dissented. He held that  death  sentence was bad morally as well as constitutionally. It is no longer necessary  in  view of the majority judgment  to  deal  with these  views in detail. This aspect was examined in  several cases  and  a bench of five learned Judges  considered  this question  again  in  Smt. Triveniben v.  State  of  Gujarat, [1989]  1 SCC 678, where Oza, J. speaking for  the  majority analysed  the trend and observed at p. 688 that it  was  not necessary to go into the jurisprudential theories of punish- ment deterrent or retributive in view of what has been  laid down  in  Bachan  Singh’s case (supra)  with  which  learned Judges  therein  agreed. It is well-settled now  that  undue long  delay  in  execution of the sentence  of  death  would

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entitle the condemned person to approach this Court or to be approached  under Article 32 of the Constitution,  but  this Court  would  only examine the nature of  delay  caused  and circumstances  that ensued after sentence was  finally  con- firmed by the judicial proces and will have no  jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death. But the court is entitled and indeed obliged to 783 consider  the question of inordinate delay in the  light  of all  circumstances of the case to decide whether the  execu- tion 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  emphasised  that Article 21 is relevant in all stages. Speedy trial in crimi- nal  cases though may not be fundamental right, is  implicit in  the broad sweep and content of Article 21. Speedy  trial is part of one’s fundamental right to life and liberty. This principle  is no less important for disposal of mercy  peti- tion.  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. See  the  ’observations of Shetty, J. in  Triveniben’s  case (supra)  at  p. 7 13-7 14 of the report, where it  has  been observed  that 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 mental worry  burns  the living  one. In the instant case, Gyasi Ram has  suffered  a great  deal of mental agony for over eight years. It is  not disputed  that  there has been long delay. We  do  not  find reasons  sufficiently  commensurate  to  justify  such  long delay. The convict has suffered mental agony of living under the  shadow of death for long, far too long. He  should  not suffer that agony any longer.     In  the  aforesaid facts and the  circumstances  of  the case,  therefore, we direct that the death  sentence  should not  be  carried out and the sentence imposed  upon  him  be altered to imprisonment for life. We order accordingly. This Writ Petition is disposed of with the aforesaid  direc- tion. Y.  Lal                                       Petition  dis- posed of. 784