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PETITIONER: SHER SINGH & OTHERS

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT24/03/1983

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) TULZAPURKAR, V.D. VARADARAJAN, A. (J)

CITATION:  1983 AIR  465            1983 SCR  (2) 582  1983 SCC  (2) 345  CITATOR INFO :  R          1983 SC 585  (3)  E          1985 SC 231  (3)  D          1988 SC  30  (5)  RF         1989 SC 142  (1)  APR        1989 SC1335  (1,2,28,29,51,56,66,73)  RF         1989 SC1933  (27)  R          1989 SC2299  (2)  F          1991 SC 345  (11,14,15,18)

ACT:      Constitution of  India-Art. 2I-Fair  procedure-Prisoner sentenced to  death-Delay in  execution of sentence-Prisoner entitled to  invoke jurisdiction under Art. 21 for examining whether it  is  just  and  fair  to  allow  sentence  to  be executed-Prisoner  cannot  demand  that  sentence  of  death should be  quashed  and  substituted  by  sentence  of  life imprisonment-Prolonged delay  is an  important consideration but several other factors must also be taken into account-No absolute or unqualified rule can be laid down.

HEADNOTE:      The petitioners  were convicted  under s. 302 read with s. 34  I.P.C. and  were sentenced  to death  on November 26, 1977. The  High Court  upheld the conviction and sentence on July 18,  1978.  The  petitioners’  Special  Leave  Petition against the  judgment of  the High  Court was  dismissed  on March 5,  1979 and the Review Petition against the dismissal of the  Special Leave  Petition was  also dismissed on March 27,  1981.   The  petitioners’   successive  writ  petitions challenging the  validity of  ss. 302  and  34  I.P.C.  were dismissed  on   January  20,   1981  and   August  24,  1981 respectively. The present writ petitions were filed on March 2, 1983 on the basis of the decision in T.V. Vatheeswaran v. State of Tamil Nadu which was rendered on February 16, 1983.      The contention  on behalf  of the  petitioners was that more than two years had elapsed since they were sentenced to death by the trial court and therefore they were entitled in terms of  the ruling in vatheeswaran to demand that the said sentence should  be quashed  and substituted by the sentence of life imprisonment. ^

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    HELD :  Prolonged delay  in the  execution of  a  death sentence is  unquestionably an  important consideration  for determining whether  the sentence  should be  allowed to  be executed. But  no hard  and fast  rule that "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  Art. 21  and demand the quashing of the sentence of  death" can  be laid  down as  has been  done in Vatheeswaran. [594 E-F]      (i) No  absolute or  unqualified rule  can be laid down that in  every case  in which  there is  a long delay in the execution of a death sentence, the 583 sentence  must  be  substituted  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 entitled to pursue all remedies lawfully open to him and get rid of the sentence of death imposed upon him and his taking recourse to  them to ask for the commutation of his sentence even  after  it  is  finally  confirmed  by  this  Court  is understandable. But,  it is,  at least, relevant to consider whether the  delay in the execution of the death sentence is attributable to the fact that he has resorted to a series of untenable proceedings which have the effect of defeating the ends of  justice. It is not uncommon that a series of review petitions and  writ petitions  are filed  in this  Court  to challenge judgments  and orders which have assumed finality, without any  seeming justification. Stay orders are obtained in those  proceedings and  then, at the end of it all, comes the  argument   that  there  has  been  prolonged  delay  in implementing the judgment or order. The Court called upon to vacate a  death sentence  on the  ground of  delay caused in executing that  sentence must  find why the delay was caused and who  is responsible for it. If this is not done, the law laid down by this Court will become an object of ridicule by permitting a  person to  defeat it by resorting to frivolous proceedings in  order to  delay its implementation. Further, the  nature   of  the  offence,  the  diverse  circumstances attendant upon  it, its impact upon the contemporary society and the  question whether  the motivation and pattern of the crime are  such as  are likely  to lead to its repetition if the death  sentence is  vacated, re matters which must enter into the  verdict as  to  whether  the  sentence  should  be vacated for  the reason  that its  execution is delayed. The substitution of  the death  sentence by  a sentence  of life imprisonment cannot  follow by  the application  of the  two years’ formula  as a  matter of  "quod erat  demonstrandum." [595 D-H; 596-AE]      T.V. Vatheeswaran  v. State  of Tamil  Nadu.  [1983]  2 S.C.R. 348 overruled.      (ii) The  period of  two years  purports to  have  been fixed in Vatheeswaran after making "all reasonable allowance for the  time necessary  for  appeal  and  consideration  of reprieve." It is not possible to agree with this part of the judgment in that case. The fixation of the time limit of two years does not accord with the common experience of the time normally  consumed   by  the   litigative  process  and  the proceedings before the executive. A period far exceeding two years is  generally taken  by the  High Court and this Court together for  the disposal  of matters  involving  even  the death sentence. Very often four or five years elapse between the imposition  of death  sentence by the Sessions Court and the disposal  of the  Special Leave Petition or an Appeal by this Court in that matter. This is apart from the time which

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the President  or the Governor, as the case may be, takes to consider petitions  filed under  Art. 72  or Art. 161 of the Constitution or  the time  which  the  Government  takes  to dispose of  application filed  under ss.  432 and 433 of the Code of Criminal Procedure. [594-F-H; 595-AC]      (iii)  Piare   Dusadh  is  not  an  authority  for  the proposition that  if a  certain number  of years have passed since the imposition of a death sentence, 584 that  sentence   must  necessarily   be  commuted   to  life imprisonment. In  that case  the Federal  Court commuted the sentence of death to sentence of transportation for life for reasons other  than that  a long  delay had intervened after the death  sentence was  imposed.  In  Ediga  Anamma,  Piare Dusadh was  regarded as  a leading case on the point. In the other judgments  of this  Court referred to in Vatheeswaran, this Court  was hearing  appeals against  judgments of  High Courts confirming  the sentence of death. However, the Court has not  taken the  narrow view  that  the  jurisdiction  to interfere with  a death sentence can be exercised only in an appeal against  the judgment  of conviction and sentence. In very recent  times, the  sentence of death has been commuted to life  imprisonment by this Court in quite a few cases for the reason,  inter alia,  that the  prisoner was  under  the spectre of  the sentence  of death  for an  unduly long time after the  final confirmation  of that sentence. [589 B-D-H; 590-A-D]      Piare Dusadh,  [1944] F.C.R.  Vol.6 61;  Ediga  Anamma, [1974] 3  S.C.R. 329;  Sunil Batra  v. Delhi Administration, [1979] 1  S.C.R. 392;  Maneka Gandhi  [1978] 2  S.C.R.  621; Bachan Singh,  [1980]  2  S.C.C.  684,  Hussainara  Khatoon, [1980] 1  S.C.C. 98;  Hoskot, [1978]  3 S.C.C.  544;  Bhuvan Mohan Patnaik,  [1975] 2  S.C.R. 24; and Prabhakar Pandurang Sangzgiri, [1966] 1 S.C.R. 702 referred to.      (iv) Article  21 is  as much  relevant at  the stage of execution of  the death sentence as it is in the interregnum between the  imposition of  that sentence and its execution. The essence  of the  matter is that all procedure, no matter what the  stage, must  be fair,  just and  reasonable. It is well established  that a  prisoner  cannot  be  tortured  or subjected to  unfair or  inhuman treatment.  It is a logical extension  of   the  self  same  principle  that  the  death sentence, even if justifiably imposed, cannot be executed if supervening events  make  its  execution  harsh,  unjust  or unfair. A  prisoner who  has experienced  living  death  for years on  end is entitled to invoke the jurisdiction of this Court for  examining the  question whether,  after  all  the agony and  torment he  has been subjected to, it is just and fair to  allow the sentence of death to be executed. That is the true implication of Art. 21 of the Constitution. [593 B- G]      Bhuvan Mohan  Patnaik, [1975]  2 S.C.R.  24;  Prabhakar Pandurang Sangzgiri, [1966] 1 S.C.R. 702; and Sunil Batra v. Delhi Administration, [1979] 1 S.C.R. 392 referred to.      (v) Traditionally,  subsequent events  are  taken  into account in  the area  of civil  law. There  is no reason why they  should   not  receive   due  consideration   in  other jurisdictions, particularly  when  their  relevance  on  the implementation  or   execution  of   judicial  verdicts   is undeniable. Principles  analogous to res judicata govern all judicial  proceedings   but  when   new  situations  emerge, particularly factual,  after a  verdict has assumed finality in the  course of  the hierarchical  process, advertence  to those situations  is not  barred on  the ground that a final decision has  been rendered  already. That final decision is

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not a  decision on  new facts. Courts are never powerless to do justice, that 585 is to say, to ensure that the processes of law do not result in undue  misery, suffering  or hardship.  That is why, even after the  final seal of approval is  placed upon a sentence of death,  this Court  has exercised its power to direct, ex debito justiciae,  that though  the sentence  was  justified when passed,  its execution,  in the  circumstances  of  the case, is  not justified  by reason  of the  unduly long time which has elapsed since the confirmation of that sentence by this Court. [590-E-H]      In the instant case, the sentence of death imposed upon the petitioners  by the  Sessions Court and which was upheld by the  High Court  and this  Court cannot be vacated merely for the  reason that  there has  been a  long delay  in  the execution of that sentence. Counsel for the petitioners have been asked  to argue  upon the  reasons why,  apart from the delay caused  in executing  the death  sentence, it would be unjust and  unfair to execute that sentence at this point of time.  The  question  will  be  decided  after  hearing  the parties. [596-G-H; 597-A-B]      2. Petitions  filed under  Arts.  72  and  161  of  the Constitution and  under ss.  432 and  433, Cr.  P.C. must be disposed of  expeditiously. A  self imposed  rule should  be followed  by  the  executive  authorities  that  every  such petition shall  be disposed  of within  a  period  of  three months from the date on which it is received. [597-C]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition Nos. 232 & 233 of 1983.      (Under article 32 of the Constitution of India)      M.S. Joshi,  N.D. Garg  and Rajiv  Kumar Garg  for  the Petitioners.      D.D. Sharma for the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD,  CJ.  An  important  question  arises  for consideration in  these two writ petitions. That question is whether a  delay exceeding  two years  in the execution of a sentence of  death must be considered sufficient for setting aside that  sentence. Learned  counsel who appears on behalf of the  petitioners relies  upon a decision of this Court in T.V. Vatheeswaran v. The State of Tamil Nadu(1) and contends that since  more  than  two  years  have  passed  since  the petitioners were sentenced to death by the Trial Court, they are entitled  to demand  that the  said sentence  should  be quashed  and   substituted   by   the   sentence   of   life imprisonment.      The petitioners,  Sher Singh  and Surjit Singh, and one Kuldip Singh  were convicted  under section  302  read  with section 34 of the 586 Penal Code  and were  sentenced  to  death  by  the  learned Sessions Judge, Sangrur, on November 26, 1977. By a judgment dated July  18, 1978  the High  Court of  Punjab and Haryana reduced the  sentence imposed  upon  Kuldip  Singh  to  life imprisonment but  upheld the  sentence of death imposed upon the petitioners.  The High  Court also imposed a sentence of fine of  Rs. 5000  on Kuldip Singh and a fine of Rs. 5000 on each of  the petitioners.  Special Leave Petition (Crl.) No. 1711 of  1978 which was filed by the petitioners against the judgment of  the High  Court was  dismissed by this Court on

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March 5, 1979. The petitioners then filed a Writ Petition in this Court  challenging the  validity of  section 302 of the Penal Code. That petition was dismissed on January 20, 1981. Review Petition  No. 99  of 1981  filed by  the  petitioners against the  dismissal of their S.L.P. was dismissed by this Court on  March 27,  1981. The petitioners filed yet another petition under  article 32  of the  Constitution, this  time challenging the  validity of  section 34  of the Penal Code. That petition  was  dismissed  on  August  24,  1981.  After failing  in   these  seemingly   inexhaustible   series   of proceedings, the  petitioners filed these two writ petitions on March 2, 1983, basing themselves on the decision rendered by  Justice  Chinnappa  Reddy  and  Justice  R.B.  Misra  on February 16, 1983 in Vatheeswaran.      The  question   which  arose   for   consideration   in Vatheeswaran is formulated by Chinnappa Reddy, J., who spoke for the Court, in these terms:      "But the  question is whether in a case where after the      sentence of  death is given, the accused person is made      to undergo  inhuman and  degrading punishment  or where      the execution  of the sentence is endlessly delayed and      the accused  is made  to suffer  the most  excruciating      agony and  anguish, is it not open to a court of appeal      or  a   court  exercising   writ  jurisdiction,  in  an      appropriate proceeding to take note of the circumstance      when it  is brought to its notice and give relief where      necessary ?"      This question arose on the following facts as stated in the judgment of Brother Chinnappa Reddy:      (1) The prisoner was rightly sentenced to death.      (2) He was the ’arch-villain of a villainous piece’ and           the brain behind a cruel conspiracy to impersonate           Customs officers, pretend to question unsuspecting           visi- 587           tors to  the city  of Madras,  abduct them  on the           pretext of interrogating them, administer sleeping           pills to  the unsuspecting  victims,  steal  their           cash and  jewels and finally murder them. The plan           was ingeniously fiendish and the appellant was its           architect.      (3)  Since January  19, 1975  when the  Sessions  Judge           pronounced the sentence of death, the prisoner was           kept  in  solitary  confinement  contrary  to  the           decision of  this Court  in Sunil  Batra v.  Delhi           Administration.  (1)   Before  that,   he  was   a           ’prisoner under remand’ for two years.      On these  facts, the argument advanced in this Court on behalf of  the prisoner  was that taking away his life after keeping him in jail for ten years, eight of which were spent in illegal solitary confinement, is a gross violation of the fundamental  rights   guaranteed  by   Article  21   of  the Constitution.      In  Vatheeswaran,   our  learned  Brethren  have  drawn sustenance to  their conclusion  from one  judgment  of  the Federal Court of India, five judgments of this Court, one of the Privy  Council and  one of the U.S. Supreme Court. As to the  meaning   and  implications   of  Article   21  of  the Constitution, they  have relied  upon the  decisions of this Court in Sunil Batra,(1) Maneka Gandhi,(2) Bachan Singh, (3) Hussainara Khatoon (4) and Hoskot.(5) The judgment in Bhuvan Mohan Patnaik (6) and Prabhakar Pandurang Sangzgiri (7) have been relied  upon to  show that  prisoners who  are under  a sentence of  death  and  detenus  are  entitled  to  certain fundamental rights.

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    In Piare  Dusadh, (8) the Federal Court was considering appeals  against   the  judgments  of  the  High  Courts  of Allahabad, Madras,  Nagpur  and  Patna,  under  the  special Criminal Courts  Ordinance II  of 1942. In Case Nos. XLI and XLII, the High Court of Patna had 588 confirmed the  sentence of death passed on the appellants by the Special  Judge. It  was urged  before the  Federal Court that the  death sentence  imposed in  those cases  should be reduced to  transportation for  life on  account of the time that had  elapsed since the sentences were first pronounced. The Court observed:      "It is  true that death sentences were imposed in these      cases several months ago, that the appellants have been      lying ever  since under  threat of  execution, and that      the long delay has been caused very largely by the time      taken in  proceedings over  legal points  in respect of      the constitution  of the  courts before which they were      tried and  of the validity of the sentences themselves.      We do  not doubt that this court has power, where there      has been  inordinate delay  in executing death sentence      in cases  which come  before it, to allow the appeal in      so  far   as  the   death  sentence  is  concerned  and      substitute a  sentence of  transportation for  life  on      account of  the time  factor alone,  however right  the      death sentence  was at  the time when it was originally      imposed. But  this is a jurisdiction which very closely      entrenches on the powers and duties of the executive in      regard  to   sentences  imposed  by  courts.  It  is  a      jurisdiction  which   any  court   should  be  slow  to      exercise. We do not propose ourselves to exercise it in      these cases.  Except in Case No. XLVII (in which we are      commuting the  sentence largely  for other  reasons  as      hereafter appears),  the circumstances  of  the  crimes      were such that if the death sentence which was the only      sentence  that   could  have   been  properly   imposed      originally, is  to be  commuted, we feel that it is for      the executive to do so."      It was  urged before the Federal Court that in England, when cases  in which  death sentence  has been  imposed  are allowed to be taken to the House of Lords on account of some important legal  point, the  consequential delay  in finally disposing of  the case  was treated  as  a  ground  for  the commutation of  the death sentence and that a similar course might well be adopted in India in cases in which substantial questions  of   law  as   to  the   interpretation  of   the Constitution Act  had to be considered by the Federal Court. This argument  was rejected  on the  ground that  these were matters primarily for the consideration of the executive. 589      In Case  No. XLVII,  which was  one of the cases before the Federal  Court, the appellant was convicted by a special Judge of the offence of murder and was sentenced to death on September 30,  1942. The  Allahabad High Court confirmed the sentence of  death  but  the  Federal  Court  commuted  that sentence to  transportation of  life. As is evident from the parenthetical portion  of the  passage extracted above, this was done  "largely for  other reasons",  that is to say, for reasons other  than that  a long  delay had intervened after the death  sentence was  imposed. The Federal Court commuted the death  sentence on  the  ground  that  the  sentence  of transportation  for   life  was   more  appropriate  in  the circumstances of the case. They added that the appellant was awaiting the  execution of  his death  sentence for  over  a year.

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    It is  thus clear that Piare Dusadh is not an authority for the  proposition that  if a certain number of years have passed since  the  imposition  of  a  death  sentence,  that sentence must necessarily be commuted to life imprisonment.      In Ediga  Anamma(1) this  Court was  hearing an  appeal against the  sentence of  death imposed  upon the appellant. Finding that  the appellant  was a young woman of 24 who was flogged out  of her  husband’s house  by the  father-in-law, this Court  reduced her  sentence to life imprisonment for a variety of  factual reasons  peculiar to  the case, like her entanglement into  a sex  net, that  she had  a young boy to look after  and so on. Speaking for the Court, Krishna Iyer, J. added:      "What may perhaps be an extrinsic factor but recognised      by  the   Court  as   of  humane  significance  in  the      sentencing context  is the brooding horror of ’hanging’      which has  been haunting  the prisoner in her condemned      cell for  over two years. The Sessions Judge pronounced      the death  penalty on December 31, 1971, and we are now      in February 1974. This prolonged agony has ameliorative      impact according to the rulings of this Court."      Piare Dusadh  was regarded  by the  Court as  a leading case  on  this  point.  We  have  already  adverted  to  the circumstances in  which the  death sentence  was commuted to transportation for life in that case. 590      In the other cases referred to in Vatheeswaran, (supra) this Court was hearing appeals against the judgments of High Courts confirming the sentence of death. In those cases, the sentence of  death was  commuted into  life imprisonment  by this Court  by reason of the long interval which had elapsed either since  the imposition  of the death sentence or since the date of the occurrence.      But we must hasten to add that this Court has not taken the narrow  view that  the jurisdiction  to interfere with a death sentence  can be  exercised only  in an appeal against the judgment  of conviction and sentence. The question which arises in  such  appeals  is  whether  the  extreme  penalty provided by  law is  called for  in the circumstances of the case. The question which arises in proceedings such as those before us  is whether,  even if  the death  sentence was the only appropriate  sentence to  impose in  the case  and  was therefore imposed,  it will  be harsh  and unjust to execute that sentence  by reason  of  supervening  events.  In  very recent times,  the sentence  of death  has been  commuted to life imprisonment by this Court in quite a few cases for the reason, inter  alia, that the prisoner was under the spectre of the  sentence of  death for an unduly long time after the final confirmation  of that  sentence, consequent  upon  the dismissal of the prisoner’s Special Leave Petition or Appeal by this  Court. Traditionally,  subsequent events  are taken into account  in the  area of  civil law. There is no reason why they  should not  receive  due  consideration  in  other jurisdictions, particularly  when  their  relevance  on  the implementation  or   execution  of   judicial  verdicts   is undeniable.  Undoubtedly,   principles  analogous   to  Res- judicata  govern  all  judicial  proceedings  but  when  new situations emerge, particularly factual, after a verdict has assumed finality  in the course of the hierarchical process, advertence to  those situations  is not barred on the ground that a  final decision has been rendered already. That final decision is  not a  decision on  new facts. Courts are never powerless to  do justice, that is to say, to ensure that the processes of law do not result in undue misery, suffering or hardship. That is why, even after the final seal of approval

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is placed    upon  a  sentence  of  death,  this  Court  has exercised its  power to  direct, ex  debito justiciae,  that though  the   sentence  was   justified  when   passed,  its execution,  in   the  circumstances  of  the  case,  is  not justified by  reason of  the  unduly  long  time  which  has elapsed since  the confirmation  of that  sentence  by  this Court. Some  of us  dealing with this case have been parties to decisions directing, in appropriate cases, that the death sentence shall  not be  executed by  reason  of  supervening circumstances. 591      In Vatheeswaran, the prisoner was under the sentence of death for over eight years and was in the jail for two years before that.  After the  death sentence  was pronounced upon him, he  was kept  in solitary confinement, contrary to this Court’s   ruling   in   Sunil   Batra.   These   supervening considerations, inter  alia, were  unquestionably germane to the decision whether the death sentence should be allowed to be executed.  The Court  took them into account and commuted the sentence to life imprisonment.      Like our  learned Brethren,  we too  consider that  the view expressed  in this  behalf by  Lord  Scarman  and  Lord Brightman in  the Privy  Council decision  of Neol Riley (1) is, with respect, correct. The majority in that case did not pronounce upon  this  matter.  The  minority  expressed  the opinion that  the jurisprudence  of the  civilized world has recognized  and   acknowledged  that   prolonged  delay   in executing a  sentence of  death can make the punishment when it comes  inhuman and  degrading: Sentence  of death  is one thing; sentence  of death  followed by  lengthy imprisonment prior to  execution is  another. The  prolonged  anguish  of alternating hope  and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional, and physical integrity  and health  of the individual can render the decision to execute the sentence of death an inhuman and degrading punishment in circumstances of a given case.      Death   sentence    is   constitutionally   valid   and permissible within  the constraints  of the  rule in  Bachan Singh. This has to be accepted as the law of the land. We do not, all of us, share the views of every one of us. And that is natural  because, every  one of us has his own philosophy of  law  and  life,  moulded  and  conditioned  by  his  own assessment of  the performance and potentials of law and the garnered experiences  of life. But the decisions rendered by this Court  after a  full debate have to be accepted without mental reservations until they are set aside.      The fact  that it  is permissible  to impose  the death sentence in appropriate cases does not, however, lead to the conclusion that  the sentence must be executed in every case in which  it is  upheld, regardless of the events which have happened since  the imposition  or  the  upholding  of  that sentence. The  inordinate delay  in  the  execution  of  the sentence is  one circumstance  which has  to be  taken  into account 592 while deciding  whether  the  death  sentence  ought  to  be allowed to  be executed in a given case. In his sociological study called  ’Condemned to  Die,  Life  Under  Sentence  of Death’, Robert Johnson says:           "Death row is barren and uninviting. The death row      inmate  must  contend  with  a  segregated  environment      marked by  immobility,  reduced  stimulation,  and  the      prospect of harassment by staff. There is also the risk      that visits  from loved  ones will  become increasingly      rare, for  the man  who  is  "civilly  dead"  is  often

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    abandoned  by  the  living.  The  condemned  prisoner’s      ordeal is  usually a lonely one and must be met largely      through his  own resources.  The uncertainties  of  his      case-pending appeals,  unanswered bids for commutation,      possible changes  in the  law-may aggravate  adjustment      problems. A  continuing and pressing concern is whether      one will  join the  substantial minority  who obtain  a      reprieve or  will  be  counted  among  the  to-be-dead.      Uncertainty may  make the  dilemma  of  the  death  row      inmate more  complicated than  simply choosing  between      maintaining  hope   or  surrendering  to  despair.  The      condemned can  afford  neither  alternative,  but  must      nurture both  a desire  to live  and an  acceptance  of      imminent  death.   As  revealed  in  the  suffering  of      terminally ill patients, this is an extremely difficult      task, one  in which  resources afforded  by  family  or      those  within   the  institutional  context  may  prove      critical to  the person’s  adjustment.  The  death  row      inmate  must   achieve  equilibrium   with  few  coping      supports. In  the process, he must somehow maintain his      dignity and integrity" (page 4)           "Death row is a prison within a prison, physically      and socially isolated from the prison community and the      outside world.  Condemned prisoners  live  twenty-three      and one-half hours alone in their cells..." (page 47)      The author proceeds to say:           "Some death  row inmates,  attuned to  the  bitter      irony  of   their   predicament,   characterize   their      existence as  a living  death  and  themselves  as  the      living dead. They are speaking symbolically, of course,      but their  imagery is an appropriate description of the      human experience  in a world where life is so obviously      ruled by death. It takes 593      into   account   the   condemned   prisoners’   massive      deprivation  of  personal  autonomy  and  command  over      resources critical  to psychological survival; tomblike      setting, marked  by indifference  to basic  human needs      and desires;  and their  enforced  isolation  from  the      living, with  the  resulting  emotional  emptiness  and      death." (page 110)      A prisoner  who has  experienced living death for years on end  is therefore  entitled to invoke the jurisdiction of this Court for examining the question whether, after all the agony and  torment he  has been subjected to, it is just and fair to  allow the sentence of death to be executed. That is the true  implication of  Article 21 of the Constitution and to  that   extent,  we  express  our  broad  and  respectful agreement with  our learned  Brethren in their visualisation of the  meaning of  that article. The horizons of Article 21 are ever widening and the final word on its 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 degradation. Therefore, Article 21 is as much relevant  at  the  stage  of  execution  of  the  death sentence as  it is in the interregnum between the imposition of that  sentence and  its execution.  The  essence  of  the matter is that all procedure, no matter what the stage, must be fair,  just and reasonable. It is well-established that a prisoner cannot  be  tortured  or  subjected  to  unfair  or inhuman  treatment.   (See  Prabhakar  Pandurang  Sangzgiri, Bhuvan Mohan  Patnaik and  Sunil Batra).  It  is  a  logical extension  of   the  self-same   principle  that  the  death sentence, even if justifiably imposed, cannot be executed if

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supervening events  make  its  execution  harsh,  unjust  or unfair, Article 21 stands like a sentinel over human misery, degradation and  oppression.  Its  voice  is  the  voice  of justice and  fairplay. That  voice can  never be silenced on the ground  that the time to heed to its imperatives is long since past  in the story of a trial. It reverberates through all stages-the  trial, the  sentence, the  incarceration and finally, the execution of the sentence.      In cases  too  numerous  to  mention,  this  Court  has released undertrial  prisoners who  were held  in  jail  for periods longer  than the  period  to  which  they  could  be sentenced, if  found guilty:  this jurisdiction  relates  to pre-trial  procedure.  In  Hussainara  Khatoon  (supra)  and Champalal(1), speedy  trial was  held to be an integral part of the 594 right conferred  by Article 21: this jurisdiction relates to procedure  during   the  trial.   In   Prabhakar   Pandurang Sangzgiri, the  Court upheld the right of a detenu, while in detention, to  publish a  book of scientific interest called ’Inside the Atom’; in Bhuvan Mohan Patnaik, it was held that prisoners had  to be  afforded reasonable human conveniences and that  the live-wire  mechanism fixed  on prison-walls in pursuance  of   administrative  instructions  could  not  be justified as  reasonable  if  it  violated  the  fundamental rights  of   the  prisoners;   in  Sunil   Batra,   solitary confinement and bar-fetters were disapproved as normal modes of securing prisoners. These three cases are illustrative of the Court’s jurisdiction to review prison regulations and to regulate the treatment of prisoners while in jail. And, last but  not  the  least,  as  we  have  stated  already,  death sentences have  been commuted  to life  imprisonment by this Court either  while disposing of Special Leave Petitions and Appeals or while dealing with Writ Petitions filed after the unsuccessful  termination   of  the   normal  processes   of litigation: this  jurisdiction relates  to the  execution of the sentence. This then is the vast sweep of Article 21.      What we  have said  above delineates  the broad area of agreement between  ourselves and  our learned  Brethren  who decided Vatheeswaran.  We must  now indicate  with precision the narrow  area wherein  we feel constrained to differ from them and  the reasons  why. 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, according  to us, no hard and fast rule can be laid down as our learned Brethren have done that "delay  exceeding two  years  in  the  execution  of  a 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 period of two  years purports  to have  been fixed  in Vatheeswaran after  making   "all  reasonable   allowance  for  the  time necessary for  appeal and  consideration of  reprieve". With great respect, we find it impossible to agree with this part of the  judgment. One  has only to turn to the statistics of the disposal of cases in High Court and the Supreme Court to appreciate  that   a  period  far  exceeding  two  years  is generally taken by those Courts together for the disposal of matters involving  even the death sentence. Very often, four or  five  years  elapse  between  the  imposition  of  death sentence by  the Sessions  Court and  the  disposal  of  the Special Leave  Petition or an Appeal by the Supreme Court in that matter. This is apart from the time which the President or the  Governor, as  the case  may be,  takes  to  consider petitions filed

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595 under Article 72 or Art. 161 of the Constitution or the time which the  Government takes to dispose of applications filed under  sections   432  and  433  of  the  Code  of  Criminal Procedure. It has been the sad experience of this Court that no priority  whatsoever is  given by the Government of India to the  disposal of  petitions filed  to the President under Article 72  of  the  Constitution.  Frequent  reminders  are issued by  this Court  for an  expeditious disposal  of such petitions but  even then  the petitions remain undisposed of for a  long time.  Seeing that  the petition for reprieve or commutation is  not being  attended  to  and  no  reason  is forthcoming as  to why  the delay  is caused,  this Court is driven to  commute the death sentence into life imprisonment out of  a  sheer  sense  of  helplessness  and  frustration. Therefore, with  respect, the  fixation of the time limit of two years  does not  seem to  us to  accord with  the common experience of  the time  normally consumed by the litigative process and the proceedings before the executive.      Apart from  the fact that the rule of two years runs 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 execution  of   a  death  sentence,  the  sentence  must  be substituted 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  entitled  to pursue all  remedies lawfully  open to him to get rid of the sentence of  death imposed  upon him and indeed, there is no one, be  he  blind,  lame,  starving  or  suffering  from  a terminal illness,  who does  not want  to live.  The  Vinoba Bhaves, who  undertake the "Prayopaveshana" do not belong to the  world   of   ordinary   mortals.   Therefore,   it   is understandable that  a convict  sentenced to death will take recourse to every remedy which is available to him under the law, to  ask for the commutation of his sentence, even after the death  sentence is  finally confirmed  by this  Court by dismissing his Special Leave Petition or Appeal. But, it is, at least  relevant to  consider whether  the  delay  in  the execution of  the death sentence is attributable to the fact that he  has resorted  to a  series of untenable proceedings which have  the effect  of defeating the ends of justice. It is not  uncommon that  a series of review petitions and writ petitions are filed in this Court to challenge judgments and orders which  have assumed  finality,  without  any  seeming justification. Stay orders are obtained in those proceedings and then, at the end 596 of it  all, comes the argument that there has been prolonged delay in implementing the judgment or order. We believe that the Court  called upon  to vacate  a death  sentence on  the ground of  delay caused in executing that sentence must find why the  delay was  caused and who is responsible for it. If this is  not done,  the law  laid down  by this  Court  will become an  object of  ridicule by  permitting  a  person  to defeat it  by resorting to frivolous proceedings in order to delay its  implementation And  then, the  rule of  two years will become  a handy  tool for  defeating justice. The death sentence should not, as far as possible, be imposed. But, in that rare  and  exceptional  class  of  cases  wherein  that sentence is  upheld by  this Court, the judgment or order of this Court  ought not  to  be  allowed  to  be  defeated  by

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applying any rule of thumb.      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 its execution is delayed. The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application  of the  two years’  formula as  a matter of "quod erat demonstrandum".      In the  case before  us,  the  sentence  of  death  was imposed upon  the petitioners by the learned Sessions Judge, Sangrur, on  November 26,  1977. It  was upheld  by the High Court on  July 18,  1978. This  Court dismissed  the Special Leave Petition  filed by  the petitioners  on March 5, 1979. The matter  is pending  in this Court since then in one form or another,  by reason  of some proceeding or the other. The last of  the writ  Petitions filed  by the  petitioners  was dismissed by  this Court  on August 24, 1981. We do not know why the  sentence imposed  upon the petitioners has not been executed for  more than  a year  and half. The Government of Punjab must  explain that delay. We are of the opinion that, in the  instant case, the sentence of death imposed upon the petitioners by  the Sessions  Court and  which was upheld by the High Court, and this Court, cannot be vacated merely for the reason that there has been a long delay in the execution of that sentence.      On the  date when  these Writ Petitions came before us, we asked  the learned  counsel for  the petitioners to argue upon the 597 reasons why,  apart from  the dealy  caused in executing the death sentence,  it would  be unjust  and unfair  to execute that sentence  at this  point of  time. Every case has to be decided upon  its own  facts and  we propose  to decide this case on  its facts.  After hearing the petitioners’ counsel, we will  consider the  question  whether  the  interests  of justice require  that the  death sentence  imposed upon  the petitioners should  not be  executed  and  whether,  in  the circumstances of  the case, it would be unjust and unfair to execute that sentence now      We must  take this  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 must be disposed of  expeditiously. A  self-imposed rule  should  be followed by the executive authorities rigorously, that every such petition  shall be disposed of within a period of three months from  the date  on which  it is  received.  Long  and interminable delays in the disposal of these petitions are a serious hurdle  in the  dispensation of  justice and indeed, such delays  tend to  shake the  confidence of the people in the very  system of justice. Several instances can be cited, to which  the record  of this  Court will  bear testimony in which petitions are pending before the State Governments and the Government of India for an inexplicably long period. The latest instance  is  to  be  found  in  Cri.  Writ  Petition Nos.345-348  of  1983,  from  which  it  would  appear  that petitions filed  under Art.  161  of  the  Constitution  are pending before  the Governor of Jammu & Kashmir for anything between 5  to 8  years. A  pernicious impression seems to be growing that  whatever the courts may decide, one can always turn to the executive for defeating the verdict of the Court

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by resorting to delaying tactics. Undoubtedly, the executive has the  power, in  appropriate  cases,  to  act  under  the aforesaid provisions  but, if we may remind, all exercise of power is  preconditioned by  the duty  to be fair and quick. Delay defeats justice.      On the question as to whether the death sentence should not be  allowed to  be  executed  in  this  case,  we  shall pronounce later after hearing the parties. In the meanwhile, notice will go to the Government of Punjab.      Order accordingly. H.L.C. 598