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PETITIONER: SMT. TRIVENIBEN & ORS.

       Vs.

RESPONDENT: STATE OF GUJARAT & ORS.

DATE OF JUDGMENT07/02/1989

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) SHARMA, L.M. (J) DUTT, M.M. (J) SINGH, K.N. (J) SHETTY, K.J. (J)

CITATION:  1989 AIR 1335            1989 SCR  (1) 509  1989 SCC  (1) 678        JT 1989 (1)   314  CITATOR INFO :  R          1989 SC2299  (3)  E&F        1991 SC 345  (12,19,20)  R          1991 SC1548  (3,5,8,10)

ACT:     Constitution   of   India,   1950:   Article   32--Death sentence--Undue long  delay  in  execution--When   justifies commutation   to  life imprisonment--Whether  Supreme  Court can  reopen the conclusions reached by the court  sentencing the  prisoner--Earlier  judgment of  Court--Whether  can  be challenged   on   ground   of   violation   of   fundamental rights--Mercy petitions--Expeditious disposal of--Necessity     Art.  20(1)--Death sentence--Securing convict in  prison until  execution  of sentence----Whether amounts  to  double jeopardy.     Art. 21--Person sentenced to death--Inordinate delay  in execution    of   sentence--Whether   amounts   to    mental torture--Necessity  for  observance of  procedural  fairness emphasised.     Arts. 141-145--Larger Bench of the Court--Whether  enti- tled to overrule view of a smaller Bench.     Arts.  72,  161--Mercy  petitions--Expeditious  disposal of-Necessity for.     Criminal  Procedure Code, 1973: Sections 413, 4  14  and 354(3)-Delay in execution of death sentence--Whether can  be a  ground for commutation to life  imprisonment--Time  taken upto  final  verdict-Whether to be excluded  in  considering delay in execution of death sentence--Whether any time limit can  be  prescribed for execution  of  death  sentence--Good conduct  of  prisoner after final  verdict--Whether  can  be ground for commutation.     Indian Penal Code, 1860---Sections 120-B, 121, 132, 302, 307 & 396--Death sentence--Whether constitutionally valid.

HEADNOTE:     The  accused  were  convicted under s.  302  I.P.C.  and sentenced  to death by the trial court. The High Court  con- firmed their conviction and 510

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sentence..  This Court dismissed their special  leave  peti- tions/appeals  and subsequent review petitions. Their  mercy petitions  to the President and/ or Governor were  also  re- jected. Therefore, they approached this Court by way of Writ Petitions  for setting aside the death sentence and  substi- tuting  it by a sentence of life imprisonment on the  ground of prolonged delay in the execution. They contended that the dehumanising  factor  of  prolonged delay  with  the  mental torture  in confinement in jail had rendered  the  execution unconstitutional.     In  view of the conflicting decisions of this  Court  in T.V. Vaitheeswaran v. State of Tamil Nadu, [1983] 2 SCR  348 and  Sher Singh & Ors. v. The State of Punjab, [1983] 2  SCR 582  and observations in Javed Ahmed Abdul Hamid  Pawala  v. State  of  Maharashtra, [1985] 2 SCR 8 on  the  question  of delay,  the  writ petitions were referred to a  five  judges Bench.     While a Bench of two Judges held in Vaitheeswaran’s case that two years delay in execution of the sentence after  the judgment  of  the trial court would  entitle  the  condemned prisoner to ask for commutation of his sentence of death  to imprisonment  for life, a three Judges’ Bench held, in  Sher Singh’s case, that delay alone is not good enough for commu- tation  and  two year’s rule could not be laid down  in  the cases  of  delay and that the Court in the  context  of  the nature of the offence and delay, could consider the question of commutation of death sentence. In Javed’s case this Court observed that where the condemned man had suffered more than two  years and nine months and was repenting and  there  was nothing adverse against him in the jail records, this period of  two  years and nine months with the  sentence  of  death heavily weighing on his mind, would entitle him for commuta- tion of sentence of death into imprisonment for life.     The questions for consideration in these cases were: (a) whether  prolonged  delay in execution of  the  sentence  of death  rendered it inexecutable and entitled the accused  to demand the alternate sentence of imprisonment for life,  (b) what should be the starting point for computing this  delay, (c)  what  were the rights of a condemned prisoner  who  had been sentenced to death but not executed, and (d) what could be  the circumstances which should be considered along  with the time that had been taken before the sentence is  execut- ed.     On  October 11, 1988 this Court dismissed all  the  writ petitions, except Writ Petition No. 1566 of 1985, which  was partly  allowed  and the sentence of death  awarded  to  the accused was substituted by the sen- 511 tence of imprisonment. Over-ruling the decision in Vaithees- warans case that two years’ delay would make the sentence of death inexecutable, this Court held that undue long delay in execution of the sentence of death would entitle the condem- ned person to approach this Court under Article 32 but  this Court  would  only examine the nature of  delay  caused  and circumstances ensued after sentence was finally confirmed by the  judicial  process  and would have  no  jurisdiction  to reopen  the conclusions reached by the Court  while  finally maintaining  the sentence of death, that this  Court,  might consider  the question of inordinate delay in the  light  of all  circumstances of the case to decide whether the  execu- tion  of  the sentence should be carried out  or  should  be altered into imprisonment for life and that no fixed  period of delay would be held to make the sentence of death  inexe- cutable. Reasons for the judgment were to follow. Giving the reasons for the Judgment,

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HELD: Majority: Oza, Murari Mohon Dutt, Singh and Sharma JJ. Per Oza, J:     1.1 The delay which could be considered while  consider- ing  the question of commutation of sentence of  death  into one  of life imprisonment could only be from .the  date  the judgment by the apex Court is pronounced i.e when the  judi- cial process has come to an end. [528E-F]     1.2  The  condemned  prisoner knows  that  the  judgment pronounced  by  the Sessions Court in the  case  of  capital punishment is not final unless confirmed by the High  Court. All the delay upto the final judicial process is taken  care of while the judgment is finally pronounced, and in a number of cases the time that has elapsed from the date of  offence till  the  final decision, has weighed with the  courts  and lesser  sentence  awarded only on this  account.  [526E,  H; 527A]     State of Uttar Pradesh v. Lalla Singh and others, [1978] 1  SCC 142; Sadhu Singh v. State of U.P., AIR 1978 SC  1506; State of U.P.v. Sahai, AIR 1981 SC 1442 and Joseph Peter  v. State of Goa, Daman & Diu, [1977] 3 SCR 771, referred to.     Piare  Dusadh  and others v. The  King  Emperor,  [1944] Federal Court Reports 61, referred to. 1.3 Practically, in all the High Courts a confirmation  case i.e. a 512 case where the sentence of death is awarded by the  Sessions Court  and is pending in the High Court for confirmation  in the  High  Court a time bound programme is provided  in  the rules and, except on some rare occasions, the High Court has disposed  of a confirmation case between six months  to  one year.  At the Sessions level also, the normal  procedure  of the  sessions trial is that it is taken up day today and  it is  expected that such a sessions case should be  given  top priority  and it is expected that such trials must  continue day  to day till it is concluded. Even in this   Court,  al- though there is no specific rule, normally these matters are given  top  priority, and ordinarily, it  is  expected  that these matters will be given top priority and shall be  heard and disposed of as expeditiously as possible. Therefore,  as long as the matter is pending in any Court before any  final adjudication,  even  the person who has  been  condemned  or sentenced  to death has a ray of hope. Therefore,  it  could not be contended that he suffers that mental torture which a person  suffers  when he knows that he is to be  hanged  but waits for the Dooms day. [527G-H; 528C-E]     1.4  After the matter is finally decided judicially,  it is  open  to  the person to approach the  President  or  the Governor as the case may be with a mercy petition. It is  no doubt  true  that sometimes such mercy petition  and  review petitions are filed repeatedly causing delay, but a  legiti- mate  remedy  if available in law, a person is  entitled  to seek it and it would, therefore, be proper that if there has been undue and prolonged delay, that alone will be a  matter attracting  the jurisdiction of this Court, to consider  the question  of execution of the sentence. However, while  con- sidering  the question of delay after the final  verdict  is pronounced,  the  time  spent on petitions  for  review  and repeated mercy petitions at the instance of convicted person himself shall not be considered. [528F, G; 529A]     1.5 The only delay which would be material for consider- ation  will be the delay in disposal of the mercy  petitions or delays occurring at the instance of the Executive. [529B]     1.6 When petitions under Art. 72 or 161 are received  by the  authorities concerned, it is expected that these  peti- tions shall be disposed of expeditiously. [529C]

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   T.V. Vaitheeswaran v. State of Tamil Nadu, [1983] 2  SCR 348, over-ruled.     Sher Singh & Others v. The State of Punjab, [1983] 2 SCR 582, affirmed. 513     Javed Ahmed Abdul Hamid Pawala v. State of  Maharashtra, [1985] 2 SCR 8, referred to.     2.1  A  judgment of the Court can  never  be  challenged under  Art.  14 or 21 and, therefore, the  judgment  of  the court  awarding the sentence of death is not open  to  chal- lenge as violating Art. 14 or 21. [531G-H]     Naresh Shridhar Mirajkar and Ors. v. State of  Maharash- tra  and  Anr., [1966] 3 SCR 744 and A.R.  Antulay  v.  R.S. Nayak and another, [1988] 2 SCC 602, relied on.     2.2  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  judi- cial 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. [532A-B]     2.3  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 circum- stances  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. [532B-D]     2.4  The question of improvement in the conduct  of  the prisoner  after the final verdict also cannot be  considered for  coming to the conclusion whether the sentence could  be altered on that ground also. [532D]     3.1  Before  1955, sentence of death was the  rule,  the alternative sentence had to be explained by reasons.  There- after, it was left to the discretion of the court to inflict either  of  the sentences and ultimately in  the  1973  Code normal sentence is imprisonment for life except that for the special  reasons to be recorded sentence of death  could  be passed. This indicates a trend against sentence of death but this  coupled with the decisions wherein sentence  of  death has been accepted as constitu- 514 tional, show that although there is a shift from sentence of death  to  lesser sentence, there is a  clear  intention  of maintaining  this  sentence to meet the ends of  justice  in appropriate  cases.  Therefore, in spite  of  the  divergent trends in the various parts of the world there is a consist- ent  thought  of maintaining the sentence of  death  on  the statute book for some offences and in certain  circumstances where  it  may be thought necessary to  award  this  extreme penalty. It is awarded in the rarest of rare cases and  this is the accepted position of law. [524B-D]     Bachan  Singh  etc. etc. v. State of Punjab  etc.  etc., [1983]  1  SCR 145 and Machhi Singh and others v.  State  of Punjab, [1983] 3 SCC 470 referred to.     3.2  The  circumstances  in which  the  extreme  penalty should be inflicted cannot be enumerated in view of  complex situation  in  society and the possibilities  in  which  the offence  could be committed and the Legislature was,  there-

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fore, right in leaving it to the discretion of the  judicial decision  as  to what should be the sentence  in  particular circumstances  of  the case. But the Legislature has  put  a further rider that when the extreme penalty is inflicted  it is necessary for the court to give special reasons  thereof. [525H; 526A-B]     4.  The  prisoner,  who is sentenced and  kept  in  jail custody  under  a warrant under s. 366(2)  of  the  Criminal Procedure  Code is neither suffering  rigorous  imprisonment nor simple imprisonment. In substance, he is in jail so that he  is kept safe and protected with the purpose that he  may be  available for execution of the sentence which  has  been awarded. Hence this will not amount to double jeopardy.  [53 1E]     The  life  of the condemned prisoner  in  jail  awaiting execution  of  sentence  must be such which is  not  like  a prisoner suffering the sentence, and it is essential that he must be kept safe. [531F] Sunil  Batra v. Delhi Administration, [1979] 1 SCR  392  re- ferred to. Per Jagannatha Shetty, J (Concurring):     5.  Article  21 demands that any procedure  which  takes away  the  life and liberty of persons must  be  reasonable, just  and fair. This procedural fairness is required  to  be observed  at  every stage and till the last  breath  of  the life. [546C] 515     Maneka  Gandhi v. Union of India, [1978] 1 SCC 248;  The State  of West Bengal v. Anwar Ali, [1952] SCR  284;  Bachan Singh v. State of Punjab [1980] 2 SCC 684; Mithu v. State of Punjab, [1983] 2 SCC 277 and Sher Singh v. State of  Punjab, [1983] 2 SCC 582, relied on.     6.1  The delay which is sought to be relied upon by  the accused  consists  of two parts. The first part  covers  the time taken in the judicial proceedings. It is the time  that the parties have spent for trial, appeal, further appeal and review. The second part takes into fold the time utilized by the  executive in the exercise of its prerogative  clemency. [547H; 548A-B]     6.2 The time taken in the judicial proceedings by way of trial and appeal was for the benefit of the accused. It  was intended to ensure a fair trial to the accused and to  avoid hurry-up  justice. The time is spent in the public  interest for proper administration of justice. If there is inordinate delay  in disposal of the case, the trial court  while  sen- tencing or the appellate court while disposing of the appeal may  consider  the delay and the cause  thereof  along  with other circumstances. The court before sentencing is bound to hear  the parties and take into account  every  circumstance for  and  against  the accused. If the  court  awards  death sentence, notwithstanding the delay in disposal of the case, there  cannot be a second look at the sentence, save by  way of review. [548F-H]     6.3  There cannot be a second trial on the  validity  of sentence  based on Art. 21. The execution which is  impugned is  execution of a judgment and not apart from judgment.  If the judgment with the sentence awarded is valid and binding, it  fails to be executed in accordance with law.  Therefore, if  the  delay in disposal of the case is not  a  mitigating circumstance  for lesser sentence, it would be wholly  inap- propriate  to fail back upon the same delay to  impeach  the execution. [548H; 549A-B]     6.4  If the delay in passing the sentence cannot  render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional- Much less any  fixed

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period  of delay could be held to make the  sentence  inexe- cutable. It would be arbitrary to fix any period of  limita- tion  for execution on the ground that it would be a  denial of fairness in procedure under Article 21. [549B-C]     T.V. Vaitheeswaran v. State of Tamil Nadu, [1983] 2  SCR 348, over-ruled. 516     6.5  The  time taken by the executive  for  disposal  of mercy  petitions may depend upon the nature of the case  and the scope of enquiry to be made. It may also depend upon the number  of mercy petitions submitted by or on behalf of  the accused. The Court, therefore, cannot prescribe a time limit for disposal of even mercy petitions. However, Article 21 is relevant at all stages, and the principle that speedy  trial is a part of one’s fundamental right to life and liberty  is no less important for disposal of mercy petition. [549E-F]     Hussainara  Khatoon v. The State of Bihar, [1979] 3  SCR 169 and 1980 1 SCC 81 and Kadra Pahadiya v. State of  Bihar, [1981] 3 SCC 671 and 1983 2 SCC 104 relied on.     6.6 It has been universally recognised that a  condemned person has to suffer a degree of mental torture even  though there is no physical mistreatment and no primitive  torture. He may be provided with amenities of ordinary inmates in the prison.  But  nobody could succeed in giving  him  peace  of mind. [549G-H] Sunil  Batra v. Delhi Administration, [1978] 4 SCC  494  re- ferred to.     As  between  funeral fire and mental worry,  it  is  the latter  which is more devastating, for, funeral  fire  burns only  the dead body while the mental worry burns the  living one. This mental torment may become acute when the  judicial verdict  is finally set against the accused. Earlier to  it, there  was every reason for him to hope for acquittal.  That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned  pris- oner is entitled to come to the court requesting to  examine whether, it is just and fair to allow the sentence of  death to be executed. [550C]     6.7  The  jurisdiction of the Court at  this  stage,  is extremely  limited. The Court, while examining  the  matter, cannot  take into account the time utilised in the  judicial proceedings  up to the final verdict. The Court also  cannot take  into consideration the time taken 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.  Though the inordinate delay may be  a  significant factor,  but  that  by itself cannot  render  the  execution uncon- 517 stitutional.  Nor it can be divorced from the dastardly  and diabolical circumstances of the crime itself. [550D-G]     T.V. Vaitheeswaran v. State of Tamil Nadu, [1983] 2  SCR 348 over-ruled. Sher Singh v. State of Punjab, [1983] 2 SCR 582 affirmed.     Javed Ahmed Abdul Hamid Pawala v. State of  Maharashtra, [1985] 2 SCR 8; Vivian Rodrick v. The State of West  Bengal, [1971] 1 SCR 468; State of U.P. v. Paras Nath Singh &  Ors., [1973]  3  SCC 647; Bihar v. Pashupati Singh, [1974]  3  SCC 376; State of U.P. v. Suresh, [1981] 3 SCC 635 at 643; State ofU.  P. v. Sahai, [1982] 1 SCC 352; Ram Adhar v.  State  of U.P., [1979] 3 SCC 774 at 777; State of U.P. v. Lalla  Singh

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JUDGMENT: [1978]  4  SCC 428; Nachhittar Singh  v.  State  of  Punjab, [1975] 3 SCC 266; Maghar Singh  v. State of Punjab, [1975] 1 SCC  234;  Lajar Mashi v. State of U.P., [1976] 1  SCC  806; Hussainara  Khatoon v. The State of Bihar, [1979] 3 SCR  169 and  1980  1 SCC 81 and Kadra Pahadiya v.  State  of  Bihar, [1981] 3 SCC 671 and 1983 2 SCC 104 referred to.     6.8  If the Court wants to have a look at the  grievance as  to  delay then there should not be any delay  either  in listing  or in disposal of the matter. The person  who  com- plaints  about the delay in the execution should not be  put to  further  delay. The matter, therefore, must  be  expedi- tiously and on top priority basis, disposed of. [550D-E]     6.9  The contention that the accused should not be  exe- cuted  if  he has since improved is  unavailable,  since  it seeks to substitute a new procedure which the Code does  not provide for. [551B]     7. The judicial verdict pronounced by court in  relation to  a  matter  cannot be challenged on the  ground  that  it violates  one’s fundamental right. The judgment of  a  court cannot be said to affect the fundamental rights of citizens. [534A-B] Naresh Sridhar Mirajkar, [1963] 3 SCR 744 relied on.     8.  It is now obligatory for the court to state  reasons for  the  sentence awarded for the offence  of  murder.  The court  cannot  award death sentence without  giving  special reasons  and only in exceptional cases and not in the  usual run  of murders. There are just six offences carrying  death penalty and that too as an alternate sentence. [543E-F] 518     9. The criminal law always keeps pace with the  develop- ment  of society. The punishment which meets  the  unanimous approval in one generation, may rank as the most reprehensi- ble form of cruelty in the next. The representatives of  the people  are cognizant of the contemporary social needs.  The legislative  amendments brought about from time to time  are indicative  of their awareness. The penal law cannot  remain isolated and untouched. It will be profoundly influenced  by philosophy  prevailing. Time may reach for  the  representa- tives  of people to consider that death penalty even  as  an alternate  sentence for murder is uncalled for and  unneces- sary. There is nothing in our Constitution to preclude  them from  deleting that alternate sentence. [540C;  542H;  543H; 544A]     Bachan  Singh v. State of Punjab, [1980] 2 SCC  684  and Mithu v. State of Punjab, [1983] 2 SCC 277, referred to.     10. The practice prevailing over the years had been that a  larger  bench straightaway considers the  correctness  of and,  if necessary, overrules the view of a  smaller  bench. This  practice has been held to be the crystallised rule  of law in a recent decision by a special bench of seven  judges of this Court. This must be regarded as a final seal to  the controversy,  and it is now not open to any one  to  contend that a bench of two judges cannot be overruled by a bench of three judges. [536H; 537E] A.R. Antulay v.R.S. Nayak, AIR 2988 SC 1532, followed.

&     CRIMINAL   ORIGINAL  JURISDICTION: Writ  Petition  (CRL) Nos. 1566/86, 186/85,192/86,338/88 & 649/87. (Under Article 32 of the Constitution of India.)     R.K. Jain, Rangarajan, Mrs. Urmila Sirur, Mohd.  Naseem, Rakesh  K. Khanna, P.K. Jain, Mukul Mudgal,  Sanjay  Parikh,

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B.P. Singh, P. Krishna Rao, B.K. Prasad, Ms. Malini Poduwal, Lalit  Kumar Gupta, Manoj Swarup, Harish Salve, Rajiv  Garg, Rajiv  Shakdhar, N.D. Garg, L.K. Gupta  (Amicus-curiae),  M. Veerappa and Dalveer Bhandari for the Petitioners.     K.  Parasaran,  Attorney General, B.  Datta,  Additional Solicitor General, V.C. Mahajan. T.U. Mehta, Anand  Prakash, Ms.  A  Subhashini,  A.K.  Srivastava,  S.K.   Bhattacharya, M.N.Shroff,  Ms. Sushma Ralhan.  Mahabir Singh, AV.   Rangam and R.S. Suri for the Respondents. 519     A.K.  Goel, Ajit Pudissery and Mrs. Jayamala  Singh  for the Interveners. The following Judgments of the Court were delivered:     OZA,  J. These matters came up before us because of  the conflict  in  the two decisions of this Court:(i)  T.V.  Va- theeswaran  v. State of Tamil Nadu, [1983] 2 SCR  348;  Sher Singh & Others v. The State of Punjab, [1983] 2 SCR 582  and observations  in the case of Javed Ahmed Abdul Hamid  Pawala v.  State of Maharashtra, [1985] 2 SCR 8. In  Vatheeswaran’s case,  a  Bench of two Judges of this Court  held  that  two years delay in execution of the sentence after the  judgment of  the trial court will entitle the condemned  prisoner  to ask for commutation of his sentence of death to imprisonment for life. The Court observed that:               "Making all reasonable allowance for the  time               necessary  for  appeal  and  consideration  of               reprieve,  we think that delay  exceeding  two               years in the execution of a sentence of  death               should be considered sufficient to entitle the               person under sentence of death to invoke  Art.               21 and demand the quashing of the sentence  of               death."     In  Sher  Singh’s case which was a decision of  a  three Judges’  Bench it was held that a condemned prisoner  has  a right  of fair procedure at all stages, trial, sentence  and incarceration but delay alone is not good enough for  commu- tation and two years rule could not be laid down in cases of delay.  It  was held that the Court in the  context  of  the nature  of offence and delay could consider the question  of commutation of death sentence. The Court observed:               "Apart  from  the fact that the  rule  of  two               years run in the teeth of common experience as               regards  the time generally occupied  by  pro-               ceedings 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  imprison-               ment.  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               520               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." It was further observed:               "Finally,  and that is no less important,  the               nature  of  the offence, the  diverse  circum-               stances attendant upon it, its impact upon the

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             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 wheth-               er  the  sentence should be  vacated  for  the               reason  that  its execution  is  delayed.  The               substitution  of the death sentence by a  sen-               tence  of life imprisonment cannot  follow  by               the application of the two years’ formula,  as               a matter of "quod erat demonstrandum".     In Javed’s case, it was observed that the condemned  man who had suffered more than two years and nine months and was repenting  and there was nothing adverse against him in  the jail records, this period of two years and nine months  with the  sentence  of death heavily weighing on  his  mind  will entitle  him for commutation of sentence of death  into  im- prisonment for life. It is because of this controversy  that the matter was referred to a five-Judges’ Bench and hence it is before us.     Learned  counsel for the petitioners at length has  gone into the sociological, humane and other aspects in which the question  of sentence of death has been examined in  various decisions and by various authors. It is however not disputed that in Bachan Singh etc. etc. v. State of Punjab etc. etc., [1983] 1 SCR 145 constitutionality of sentence of death  has been  upheld  by this Court. Learned counsel has  at  length referred  to the opinion of Hon. Mr. Justice P.N.  Bhagwati, as  he  then was, which is the minority  opinion  in  Bachan Singh’s  case.  In  his opinion Justice  P.N.  Bhagwati  has conducted a detailed research and has considered the materi- al  about the various aspects of sentence of death.  Learned Attorney General appearing for the respondents also referred to some portions of the judgment but contended that howsoev- er  condemned  the sentence may be  but  its  constitutional validity  having been accepted by this Court all this  study about  looking  at  it from various angles is  not  of  much consequence.  He  also contended that the opinion  has  been drifting and the statistics reveal that 521 at  one  time there was a trend towards abolition  of  death sentence and then a reverse trend started and therefore  all this, so far as the present case is concerned, is not neces- sary. One of the contentions advanced by learned counsel for the petitioners was that apart from all other considerations it is clear that this is a sentence which if executed is not reversible  and  even if later on something  so  glaring  is detected  which  will render the ultimate conclusion  to  be erroneous  the  person convicted and executed could  not  be brought  back to life and it was on this basis that  it  was contended  that although the law provides for  the  sentence and  it  has been held to be constitutional  but  still  the Courts should be slow in inflicting the sentence and in fact it  was contended that courts are in fact slow  in  awarding the sentence. In Bachan Singh’s case, it was observed:               "To sum up, the question whether or not  death               penalty  serves any penological purpose  is  a               difficult,  complex and intractable issue.  It               has  evoked strong, divergent views.  For  the               purpose  of testing the  constitutionality  of               the impugned provision as to death penalty  in               Section  320,  Penal Code, on  the  ground  of               reasonableness in the light of Articles 19 and               21 of the Constitution, it is not necessary to               express  any categorical opinion, one  way  or

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             the other, as to which of these two antitheti-               cal  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  the               death  penalty in the impugned provisions,  is               totally  devoid  of reason  and  purpose.  If,               notwithstanding the view of the  Abolitionists               to  the  contrary,  a very  large  segment  of               people the world over, including sociologists,               legislators,  jurists, judges and  administra-               tors  still  firmly believe in the  worth  and               necessity  of capital punishment for the  pro-               tection  of society, if in the perspective  of               prevailing crime conditions in India,  contem-               porary public opinion channalised through  the               people’s  representatives in  Parliament,  has               repeatedly in the last three decades, rejected               all attempts, including the one made recently,               to  abolish or specifically restrict the  area               of death penalty, if death penalty is still  a               recognised  legal sanction for murder or  some               types  of  murder  in most  of  the  civilised               countries in the world, if the framers of  the               Indian  Constitution were fully aware  of  the               existence of death               522               penalty  as punishment for murder,  under  the               Indian  Penal  Code, if the  35th  Report  and               subsequent  Reports  of  the  Law   Commission               suggesting  retention  of death  penalty,  and               recommending  revision of the Criminal  Proce-               dure  Code and the insertion of the  new  sec-               tions 235(2) and 354(3) in that Code providing               for pre-sentence hearing and sentencing proce-               dure on conviction for murder another  capital               offences  were before the Parliament and  pre-               sumably  considered by it when in 1972-73,  it               took  up  revision of the Code  of  1898,  and               replaced it by the Code of Criminal Procedure,               1973, it cannot be said that the provisions of               death penalty as an alternative punishment for               murder, in section 302, Penal Code, is  unrea-               sonable and not in public interest. Therefore,               the  impugned provision in section  302,  vio-               lates  neither  the letter nor  the  ethos  of               Article 19." We are in entire agreement with the view expressed above.     It  is  not  necessary to go  into  the  jurisprudential theories  of punishment deterrent or retributive in view  of what  has been laid down in Bachan Singh’s case, with  which we  agree but the learned counsel at length  submitted  that the modern theorists of jurisprudence have given a go-bye to the retributive theory of punishment although in some  coun- tries  it  is recognised on a different  principle  i.e.  to pacify the public anger whereas some theorists have tried to put  both  the theories together. So far  as  the  deterrent theory  of  punishment is concerned even about  that  doubts have been expressed as regards the real deterrent effect  of punishment.  The  absence of determent effect has  been  at- tributed  to various causes sometimes long delay  itself  as public memory is always short. When the convict is utlimate-

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ly sentenced and executed people have forgotten the  offence that he has committed and on this basis it is sometimes felt that it has lost its importance. In the present case we  are not  very much concerned with all these questions except  to some extent the question of delay and its effect.     It  was also contended that this sentence is a  sentence which  is  irreversible thereby meaning that  if  ultimately some  mistake  in convicting and executing the  sentence  is detected  after the sentence is executed there is no  possi- bility  of correction. After all the criminal  jurisprudence which  is in vogue in our system even  otherwise  eliminates all possibilities of error as benefit of doubt at all stages goes  in favour of accused. Apart from it there are  only  a few  offences where sentence of death is provided and  there too the manner in which the 523 law has now been changed ultimately the sentence of death is awarded in the rarest of rare case. Therefore not much could be made of the possibility of an error.     The offences in which sentence of death is provided  are under  Sections 120-B (in some cases), 121, 132,302,307  (in some cases) and 396.     The  law as it stood before 1955 the Court was  expected to give reasons if it chose not to pass a sentence of  death as  normally sentence of death was the rule and  alternative sentence  of  imprisonment of life could only be  given  for special  reasons. As Section 367 clause (5) in the  Code  of Criminal Procedure, 1898 stood:               "If  the accused is convicted for  an  offence               punishable with death, and the Court sentences               him  to any punishment other than  death,  the               Court shall in its judgment state the  reasons               why the sentence of death was not passed." Section  367 clause (5) of Cr. P.C. was amended in 1955  and after  the  amendment discretion was left to the  courts  to give  either  sentence.  Section 367 clause  (5)  after  the amendment reads:               "In trials by jury, the Court need not write a               judgment,  but  the Court  of  Sessions  shall               record the heads of the charge to the jury:                         Provided that it shall not be neces-               sary  to  record such heads of the  charge  in               cases  where the charge has been delivered  in               English and taken down in shorthand." Thus  the  legislature dropped that part of  the  sub-clause which  made it necessary for the Court to state reasons  for not awarding sentence of death. Thus after the amendment the legal  position was that it was the discretion of the  Court to award either of the sentences.     In  the  Code  of Criminal Procedure  1973  Section  354 clause (3) has now been introduced and it has been  provided that  in  all cases of murder, life imprisonment  should  be given  unless there are special reasons for giving  sentence of death. This provision Sec. 354 clause (3)reads:               "When the conviction is for an offence punish-               able with               524               death or in the alternative with  imprisonment               for  life or imprisonment of a term of  years,               the  judgment shall state the reasons for  the               sentence awarded, and, in the case of sentence               of  death, the special reasons for  such  sen-               tence." It is thus clear that before 1955 sentence of death was  the rule,  the alternative sentence had to be explained by  rea-

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sons. Thereafter it was left to the discretion of the  court to  inflict  either of the sentences and ultimately  in  the 1973  Code normal sentence is imprisonment for  life  except for  the  special reasons to be recorded sentence  of  death could be passed. It is therefore clear that this indicates a trend  against sentence of death but this coupled  with  the decisions  ultimately  wherein sentence of  death  has  been accepted as constitutional go to show that although there is a shift from sentence of death to lesser sentence but  there is  also a clear intention of maintaining this  sentence  to meet the ends of justice in appropriate cases. It is  there- fore  clear  that in spite of the divergent  trends  in  the various  parts of the World there is consistent  thought  of maintaining  the sentence of death on the statute  book  for some  offences and in certain circumstances where it may  be thought  necessary to award this extreme penalty. As  stated generally that it is awarded in the rarest of rare cases and in this accepted position of law, in our opinion, it is  not necessary to go into the academic question about  sociologi- cal and humane aspects of the sentence and detailed examina- tion of the jurisprudential theories.     It was also contended though not very seriously that  in ultimate analysis out of the two sentences imprisonment  for life  or  death it has been left to the  discretion  of  the courts.  On the one hand it was suggested that there are  no norms laid down for exercise of discretion but on the  other hand  it was also admitted that it is very difficult to  lay down  any hard and fast rule and apparently both  the  sides realised  that  the attempt that was made by this  Court  in enumerating some of the circumstances but could not lay down all  possible circumstances in which the sentence  could  be justified.  In Machhi Singh and others v. State  of  Punjab, [1983] 3 SCC 470 it was observed that:               "In  this background the guidelines  indicated               in Bachan Singh’s case, will have to be culled               out and applied to the facts of each individu-               al  case  where the question  of  imposing  of               death sentence arises. The following  proposi-               tions emerge from Bachan Singh’s case:               (i)  The extreme penalty of death need not  be               inflicted               525               except in gravest cases of extreme  culpabili-               ty.                    (ii) Before opting for the death  penalty               the  circumstances  of  the  ’offender’   also               require  to be taken into consideration  along               with the circumstances of the ’crime’.                    (iii)  Life imprisonment is the rule  and               death sentence is an exception. In other words               death sentence must be imposed only when  life               imprisonment  appears  to  be  an   altogether               inadequate  punishment  having regard  to  the               relevant  circumstances  of  the  crime,   and               provided,  and  only provided, the  option  to               impose  sentence  of  imprisonment  for   life               cannot  be  conscientiously  exercised  having               regard to the nature and circumstances of  the               crime and all the relevant circumstances.                    (iv)  A   balance-sheet   of  aggravating               and  mitigating circumstances has to be  drawn               up  and  in doing so  the  mitigating  circum-               stances have to be accorded full weightage and               a  just balance has to be struck  between  the               aggravating  and the mitigating  circumstances

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             before the option is exercised.                   In  order to apply these guidelines  inter               alia the following questions may be asked  and               answered:                    (a) Is there something uncommon about the               crime  which renders sentence of  imprisonment               for  life  inadequate and calls  for  a  death               sentence?                     (b)  Are the circumstances of the  crime               such  that  there  is no  alternative  but  to               impose  death  sentence even  after  according               maximum  weightage to the  mitigating  circum-               stances which speak in favour of the offender?               If  upon taking an overall global view of  all               the  circumstances in the light of the  afore-               said’ proposition and taking into account  the               answers  to the questions  posed  hereinabove,               the  circumstances of the case are  such  that               death  sentence is warranted, the court  would               proceed to do so."     In  ultimate analysis it could not be disputed  and  was not  seriously disputed that the circumstances in which  the extreme penalty 526 should be inflicted cannot be enumerated in view of  complex situation  in  society and the possibilities  in  which  the offence  could be committed and in this context in  ultimate analysis  it is not doubted that the  Legislature  therefore was  right in leaving it to the discretion of  the  judicial decision  as  to what should be the sentence  in  particular circumstances  of  the case. But the Legislature has  put  a further rider that when the extreme penalty is inflicted  it is necessary for the court to give special reasons thereof.      In the matter before us we are mainly concerned with a) delay in execution of the sentence of death; b) what  should be the starting point for computing this delay?; c) what are the rights of a condemned prisoner who has been sentenced to death  but  not executed? and d) what could be  the  circum- stances  which could be considered alongwith the  time  that has been taken before the sentence is executed.     The  main theme of the arguments on the basis  of  delay has  been the inhuman suffering which a  condemned  prisoner suffers  waiting  to be executed and the mental  torture  it amounts  to and it is in this background also that the  par- ties argued at length about the starting point which  should be  considered for computing delay in execution of the  sen- tence.  On  the one hand according to  the  petitioners  the mental  torture  commences  when the trial  court  i.e.  the Sessions  Court pronounces the judgment and  awards  capital punishment. However, learned counsel also conceded that even the condemned prisoner knows that the judgment pronounced by the Sessions Court in the case of capital punishment is  not final  unless confirmed by the High Court. Mainly  therefore it  was  contended that the real  mental  torture  commences after the death sentence is confirmed by the High Court  and therefore to consider the question of delay the time  should be computed from the date of the High Court judgment. On the other  hand learned Attorney General contended that even  if the judgment of confirmation by the High Court is passed  in which  capital  punishment is awarded, invariably  comes  to this  Court and this Court ordinarily grants leave  and  ap- peals  are  heard at length and it was  therefore  contended that the delay in execution of the sentence really could  be considered  after the pronouncement of the final verdict  by this  Court and it is only after the final verdict  is  pro-

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nounced that it could be said that the judicial process  has concluded.  It  is  no doubt true that  sometimes  in  these procedures  some time is taken and sometimes even long  time is spent. May be for unavoidable circumstances and sometimes even at the instance of the accused but it was contended and rightly  so  that  all this delay upto  the  final  judicial process is taken care of while 527 the  judgment  is  finally pronounced and it  could  not  be doubted  that in number of cases considering the  time  that has  elapsed  from the date of the offence  till  the  final decision  has  weighed with the courts and  lesser  sentence awarded only on this account.     As  early as in 1944, the Federal Court in Piare  Dusadh and others v. The King Emperor, [1944] Federal Court Reports 61 observed:               "It is true that death sentences were  imposed               in  these cases several months ago,  that  the               appellants  have been lying ever  since  under               the  threat  of execution, and that  the  long               delay has been caused very largely by the time               taken  in  proceedings over  legal  points  in               respect  of  the constitution  of  the  courts               before which they were tried and of the valid-               ity  of  the sentences themselves. We  do  not               doubt  that this court has power, where  there               has  been inordinate delay in executing  death               sentences  in cases which come before  it,  to               allow  the appeal in so far as death  sentence               is  concerned  and  subsitute  a  sentence  of               transportation for life on account of the time               factor alone, however right the death sentence               was  at  the time when it was  originally  im-               posed." Similarly  in  State  of Uttar Pradesh v.  Lalla  Singh  and others, [1978] 1 SCC 142; Sadhu Singh v. State of U.P.,  AIR 1978  SC 1506; State of U.P. v. Sahai, AIR 1981 SC 1442  and Joseph Peter v. State of Goa. Daman & Diu, [1977] 3 SCR  771 while  finally  deciding the matter the  courts  have  taken notice of the delay that has occurred in the judicial  proc- ess.     It was contended that Article 21 contemplates not only a fair  procedure but also expeditious procedure and  in  this context  it was contended that observations be made so  that judicial  process  also  is concluded  as  expeditiously  as possible. Learned Attorney General has filed compilation  of rules  of  various High Courts and it is not  disputed  that practically  in  all the High Courts,  a  confirmation  case where the sentence of death is awarded by the Sessions Court and  the case is pending in the High Court for  confirmation time  bound programme is provided in the rules and it  could be said that except on some rare occasion the High Court has disposed  of a confirmation case between six months  to  one year  and  therefore it could not be said that there  is  no procedure provided for expeditious disposal of these  cases. At  the  Sessions  level also the normal  procedure  of  the Sessions  trial is that it is taken up day to  day  although after coming into force of the Code of 528 Criminal  Procedure  in 1973 where the  number  of  offences triable by the Sessions Court have been increased but  there is  sometimes a slight departure from the normal rule  which is  the cause to some extent for some slackness in the  Ses- sions  trial but attempt is always made and it  is  expected that  Sessions case where offences alleged is one  which  is

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punishable  with  death  should be given  top  priority  and normally  it Is given top priority and it is  expected  that the trials must continue day to day unless it is  concluded. Although  it is well-known that sometimes it is at  the  in- stance of the advocates appearing for defence also that this normal rule is given a go-bye but ordinarily it is  expected that  these cases must be tried expeditiously  and  disposed of.     Even in this Court although there does not appear to  be a  specific  rule but normally these matters are  given  top priority.  Although  it was contended  that  this  reference before  us--a Bench of five-Judges, was listed  for  heating after  a  long  interval of time. We do not  know  why  this reference  could  not, be listed except  what  is  generally well-known  the  difficulty  of providing a  Bench  of  five Judges but ordinarily it is expected that even in this Court the matters where the capital punishment is involved will be given top priority and shall be heard of and disposed of  as expeditiously  as possible but it could not be doubted  that so  long as the matter is pending in any Court before  final adjudication  even the person who has been condemned or  who has been sentenced to death has a ray of hope. It  therefore could  not be contended that he suffers that mental  torture which a person suffers when he knows that he is to be hanged but waits for the Dooms-Day. The delay therefore which could be considered while considering the question of  commutation of  sentence  of death into one of life  imprisonment  could only  be  from the date the judgment by the  apex  court  is pronounced  i.e.  when the judicial process has come  to  an end.     After  the matter is finally decided judicially,  it  is open  to the person to approach the President or the  Gover- nor,  as the case may be, with a mercy petition.  Some-times person or at his instance or at the instance of some of  his relatives,  mercy  petition and review petitions  are  filed repeatedly causing undue delay in execution of the sentence. It was therefore contended that when such delay is caused at the instance of the person himself he shall not be  entitled to  gain any benefit out of such delay. It is no doubt  true that  sometimes  such petitions are filed but  a  legitimate remedy if available in law, a person is entitled to seek  it and  it  would therefore be proper that if  there  has  been undue  and prolonged delay that alone will be a  matter  at- tracting  the  jurisdiction of this Court, to  consider  the question of the execution of the 529 sentence. While considering the question of delay after  the final verdict is pronounced, the time spent on petitions for review-and  repeated mercy petitions at the instance of  the convicted  person himself however shall not  be  considered. The  only  delay which would be material  for  consideration will  be  the delays in disposal of the mercy  petitions  or delay occurring at the instance of the Executive.     So  far as the scope of the authority of  the  President and the Governor while exercising jurisdiction under Article 72 and Article 16 1 are concerned the question is not at all relevant  so  far as the case in hand is concerned.  But  it must  be observed that when such petitions under Article  72 or  161  are  received by the authorities  concerned  it  is expected  that these petitions shall be disposed of  expedi- tiously.     It  was also contended that when capital  punishment  is awarded  the sentence awarded is only sentence of death  but not  sentence of death plus imprisonment and therefore if  a condemned prisoner has to live in jail for long in substance

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it  amounts  to punishment which is sentence  of  death  and imprisonment for some time and this according to the learned counsel will amount to double jeopardy which is contrary  to Article 20 and the imprisonment cannot be justified in  law. Section 366 of the Code of Criminal Procedure provides:               "366.  Sentence  of death to be  submitted  by               Court  of Session for  confirmation--(1)  When               the  Court  of Session passes  a  sentence  of               death,  the proceedings shall be submitted  to               the High Court, and the sentence shall not  be               executed  unless it is confirmed by  the  High               Court.               (2)  The  Court  passing  the  sentence  shall               commit  the convicted person to  jail  custody               under a warrant." This  no doubt authorises the Court of Sessions to commit  a person  sentenced to death to jail custody under a  warrant. But this Section does not contemplate how long he has to  be in  jail. Clause (1) of Section 366 provides that  when  the Court of Sessions passes a sentence of death the proceedings shall be submitted to the High Court and the sentence  shall not be executed unless it is confirmed by the High Court. It is  therefore  apparent  that sub-clause  (2)  provided  for committing the convicted person to jail awaiting the confir- mation  of the sentence by the High Court. It is also  clear that when a person is committed to jail awaiting the  execu- tion  of the sentence of death, it is not  imprisonment  but the prisoner has to be kept secured till the 530 sentence  awarded  by the court is executed and  it  appears that it is with that purpose in view that sub-clause (2)  of Section  366  simply provided for committing  the  convicted person to jail custody under a warrant.     The  question about solitary confinement or keeping  the condemned  prisoner alone under strict guard as provided  in various  jail manuals was considered by this Court in  Sunil Batra v. Delhi Administration, [1979] 1 SCR 392 and  consid- ering the question of solitary confinment it was observed:               "In  our opinion sub-s. (2) of S. 30 does  not               empower  the jail authorities in the  garb  of               confining a prisoner under sentence of  death,               in  a cell apart from all other prisoners,  to               impose solitary confinement on him. Even  jail               discipline  inhibits solitary confinment as  a               measure  of  jail  punishment.  It  completely               negatives any suggestion that because a  pris-               oner is under sentence of death therefore  and               by  reason  of that consideration  alone,  the               jail authorities can impose upon him addition-               al  and separate punishment of  solitary  con-               finement.  They  have no power to add  to  the               punishment  imposed by the Court  which  addi-               tional  punishment could have been imposed  by               the  Court itself but has in fact been not  so               imposed. Upon a true construction, sub-s.  (2)               S.30  does not empower a prison  authority  to               impose  solitary  confinment upon  a  prisoner               under sentence of death." In the same judgment, it was further observed:               "What  then is the nature of confinement of  a               prisoner  who is awarded capital  sentence  by               the  Sessions  Judge and no  other  punishment               from  the time of sentence till  the  sentence               becomes   automatically  executable?   Section               366(2)  of  the Cr.P.C. enable  the  Court  to

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             commit  the  convicted person who  is  awarded               capital  punishment  to jail custody  under  a               warrant.  It is implicit in the  warrant  that               the  prisoner  is neither awarded  simple  nor               rigorous  imprisonment.  The  purpose   behind               enacting sub-s. (2) of S.366 is to make avail-               able  the  prisoner when the sentence  is  re-               quired  to  be executed. He is to be  kept  in               jail  custody. But this custody  is  something               different from custody of a convict  suffering               simple  or rigorous imprisonment. He is  being               kept in jail custody for making him  available               for execution of the sent-               531               ence as and when that situation arises.  After               the sentence becomes executable he may be kept               in cell apart from other prisoners with a  day               and night watch. But even here, unless special               circumstances  exist,  he must be  within  the               sight and sound of other prisoners and be able               to take food in their company.                        If  the  prisoner under  sentence  of               death is held in jail custody, punitive deten-               tion  cannot be imposed upon him by  jail  au-               thorities  except for prison offences. When  a               prisoner is committed under a warrant for jail               custody under s. 366(2) Cr. P.C. and if he  is               detained  in solitary confinement which  is  a               punishment  prescribed by s. 73 IPC,  it  will               amount  to  imposing punishment for  the  same               offence  more than once which would be  viola-               tive of Article 20(2). But as the prisoner  is               not to be kept in solitary confinement and the               custody  in  which he is to be kept  under  s.               30(2)  as  interpreted by  us  would  preclude               detention in solitary confinement, there is no               chance of imposing second punishment upon  him               and  therefore, S. 30(2) is not  violative  of               Article 20."     It is therefore clear that the prisoner who is sentenced to  death and is kept in jail custody under a warrant  under Section  366(2) he is neither serving rigorous  imprisonment nor simple imprisonment. In substance he is in jail so  that he  is kept safe and protected with the purpose that he  may be  available for execution of the sentence which  has  been awarded and in this view the aspect of solitary  confinement has  already been dealt with in the above noted case but  it must be said that the life of the condemned prisoner in jail awaiting  execution  of sentence must be such which  is  not like a prisoner suffering the sentence but it is also essen- tial  that he must be kept safe as the purpose of  the  jail custody  is  to make him available for execution  after  the sentence is finally confirmed.     It  was  contended that the delay in  execution  of  the sentence  will entitle a prisoner to approach this Court  as his  right under Article 21 is being infringed. It is  well- settled now that a judgment of court can never be challenged under  Article  14 or 21 and therefore the judgment  of  the court  awarding the sentence of death is not open  to  chal- lenge as violating Article 14 or Article 21 as has been laid down  by this Court in Naresh Shridhar Mirajkar and Ors.  v. State of Maharashtra and Anr., [1966] 3 SCR 744 and also  in A.R. Antulay v.R.S. Nayak and 532 another, [1988] 2 SCC 602 the only jurisdiction which  could

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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 Article  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  circum- stances  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 circum- stances  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.     So far as our conclusions are concerned we had delivered our  Order on October 11, 1988 and we had reserved the  rea- sons  to  be given later. Accordingly in the  light  of  the discussions above our conclusion is as recorded in our Order dated October 11, 1988, reproduced below:               "Undue long delay in execution of the sentence               of death will entitle the condemned person  to               approach this Court under Article 32 but  this               Court  will 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               conclusions reached by the Court while finally               maintaining the sentence of death. This Court,               however, may consider the question of  inordi-               nate  delay in the light of all  circumstances               of the case to decide whether the execution of               sentence  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 and  to  this               extent  the  decision in  Vatheeswaran’s  case               cannot be said to lay down the correct law and               therefore to that extent stands overruled." 533     K.  JAGANNATHA  SHETTY, J- In Bachan Singh v.  State  of punlab,  [1980]  2 SCC 684, this Court pronounced  that  the provision of death penalty as an alternative punishment  for murder,  under  sec.302  IPC is  valid  and  constitutional. Sarkaria,  J. who spoke for the majority view held that  the provisions relating to imposition of death sentence and  the procedure  prescribed  thereof  would  ensure  fairness  and reasonableness  within the scope of Article 21. It was  also observed  that by no stretch of imagination it can  be  said that  death penalty under sec. 302 either per se or  because of  execution by hanging constitutes an unreasonable,  cruel or  unusual punishment- Nor the mode of its execution has  a degrading punishment which would defile the "dignity of  the individual’  within  the preamble to the  Constitution.  The learned Judge, however, cautioned (at 751):                         "A real and abiding concern for  the               dignity  of  human life postulates  resistance

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             to taking a life through law’s  instrumentali-               ty.  That  ought not to be done  save  in  the               rarest  of  rare cases  when  the  alternative               option is unquestionable foreclosed."  (Empha-               sis supplied)     Bachan  Singh case has thus narrowly tailored  the  sen- tencing  discretion  of courts as to death  sentence.  Death sentence cannot be given if there is any mitigating  circum- stance  in favour of the accused. All circumstances  of  the case  should be aggravating. It is in the gravest  of  grave crimes  or in the rarest of rare cases, the  death  sentence may be awarded. There is no offence in the penal code carry- ing  mandatory death penalty. Section 303 IPC  carrying  the mandatory  punishment has been declared unconstitutional  in Mithu v. State of Punjab, [1983] 2 SCC 277. So much so,  the death  sentence is now awarded only in miniscule  number  of cases.      All  the accused in these cases belong to that  limited and  exceptional  category. The trial court  convicted  them under  sec.  302 IPC and sentenced them to death.  The  High Court  confirmed their conviction and sentence.  This  Court dismissed  their  special  leave petitions  or  appeals  and subsequent  review petitions. Their mercy petitions  to  the President and/or the Governor were also rejected. They  have now  moved writ petitions under Article 32 of the  Constitu- tion. They are not seeking to overturn the death sentence on the ground that the Court has illegally inflicted it.  Obvi- ously,  that they can not do. The judgment of the court  has become final. Under Article 141, it shall be binding on  all Courts. Under Article 142, it shall be enforceable  through- out  the territory of India. Under Article 144 all  authori- ties, 534 civil  and judicial, in the territory of India shall act  in aid of this Court. The judicial verdict pronounced by  court in  relation to a matter cannot be challenged on the  ground that it violates one’s fundamental right. The judgment of  a court  cannot  be said to affect the fundamental  rights  of citizens  (See Naresh Sridhar Mirajkar’s case, 1963 (3)  SCR 744).     The  petitioners, however, contend that this Court  must set  aside  the death penalty and substitute a  sentence  of life  imprisonment  in view of the prolonged  delay  in  the execution. The dehumanising factor prolonged delay with  the mental torture in solitary confinement in jail, according to them,  has  rendered the  execution  unconstitutional  under Article 21. There are also some other subsidiary contentions to which I will presently refer.     We  have earlier dismissed all but one  petition  giving our unanimous conclusion stating therein that we would  give our  reasons  later. Here are my own reasons in  support  of that conclusion:     The  question  whether  prolonged  delay  renders  death sentence inexecutable and entitles the accused to demand the alternate sentence of life imprisonment has arisen amid  the diversity of judicial decisions in (i) T.V. Vaitheeswaran v. State  of Tamil Nadu, [1983] 2 SCR 348; (ii) Sher  Singh  v. State  of  Punjab, [1983] 2 SCR 582; and (iii)  Javed  Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR  8. Vaitheeswarn  case was decided by a two Judge  Bench,  where Chinnappa Reddy, J. said (at 359):                        "We  find  no impediment  in  holding               that  the  dehumanising  factor  of  prolonged               delay in the execution of a sentence of  death               has the constitutional implication of  depriv-

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             ing a person of his life in an unjust,  unfair               and unreasonable way as to offend the  consti-               tutional  guarantee  that no person  shall  be               deprived  of  his  life  or  personal  liberty               except  according to procedure established  by               law. The appropriate relief in such a case  is               to vacate the sentence of death." There then the learned Judge said (at 360):                        "Making all reasonable allowance  for               the  time necessary for appeal and  considera-               tion of reprieve, we think that delay  exceed-               ing  two years in the execution of a  sentence               of  death should be considered  sufficient  to               entitle the person               535               under  sentence of death to invoke Article  21               and  demand  the quashing of the  sentence  of               death."     Sher  Singh  case was decided by a  three  Judge  Bench. Chandrachud, CJ., who spoke for the Bench while  disagreeing with above view in Vaitheeswaran, said (at 595):                         "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."     Then  followed the decision in Javed Ahmad  case.  There Chinnappa Reddy, J. raised a question whether a three  Judge Bench  would  overrule  the decision of a  two  Judge  Bench merely  because three is larger than two? The learned  Judge said:                         "The  court sits in division of  two               and  three Judges for the sake of  convenience               and  it  may be inappropriate for  a  Division               Bench of three Judges to purport to  over-rule               the  decision  of  a  Division  Bench  of  two               Judges.  Vide Young v. Bristol  Aeroplane  Co.               Ltd.  It may be otherwise where a  full  Bench               does so. We do not, however, desire to  embark               upon  this  question  in  this  case.  In  the               present case. we are satisfied that an overall               view of all the circumstances appears to us to               entitle  the petitioner to invoke the  protec-               tion  of  Article 21 of the  Constitution.  We               accordingly  quash the sentence of  death  and               substitute  in its place the sentence  of  im-               prisonment for life."     The  question posed in Javed Ahmad case relates  to  the practice  and  procedure of this Court. It  presents  little problem  and could be conveniently disposed of without  much controversy.  At the time of flaming the  Constitution,  Mr. B.N.  Rau, after his return from United States  reported  to the President of the Constitution Assembly as follows:                         "Again Justice, Frankfurter was very               emphatic that any jurisdiction, exercisable by               the Supreme Court, should be exercised by  the               full Court. His view is that the highest Court               of appeal in the land should not sit in  divi-               sions.  Every  Judge, except  of  course  such               judges  as  may be  disqualified  by  personal               interest or otherwise from hearing               536               particular  cases, should share the  responsi-               bility for every decision of the Court."  (The               Framing of India’s Constitution Vol. III by S.

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             Shiva Rao p. 219). This  was  a very good suggestion.  But  unfortunately  that suggestion was not accepted and the principle which was dear to Justice Frankfurter was not incorporated in out Constitu- tion.  The  result  iS that each Judge does  not  share  the responsibility for every decision of this Court.     For  a proper working arrangement in the Court, we  have framed  Rules under Article 145 of the Constitution  confer- ring  power on the Chief Justice to constitute  benches  for disposal  of cases. Order VII Rule (1) of the Supreme  Court Rules 1966 provides that every cause, appeal or matter shall be  heard by a Bench consisting of not less than two  judges nominated by the Chief Justice. But this rule is subject  to the  requirement under Article 145(3) of  the  Constitution. Article 145(3) requires a minimum number of five judges  for deciding  any case involving substantial question of law  as to  interpretation  of the Constitution. In any  event,  the Supreme Court has to sit in benches with judges  distributed as the Chief Justice desires:     In  this context, Order VII Rule 2 of the Supreme  Court Rules also needs to be noted. It provides:                         "Where in the course of the  hearing               of any cause, appeal or other proceeding,  the               bench  considers  that the  matter  should  be               dealt  with by a larger bench, it shall  refer               the  matter  to the Chief Justice,  who  shall               thereupon  constitute  such a  bench  for  the               hearing of it."     This  is undoubtedly a salutory Rule, but it appears  to have  only  a limited operation. It apparently  governs  the procedure  of  a smaller bench when it  disagrees  with  the decision  of  a  larger bench. The bench in  the  course  of hearing  of any matter considers that the matter  should  be dealt  with by a larger bench, it shall refer the matter  to the Chief Justice. The Chief Justice shall then consitute  a larger bench for disposal of the matter. This exercise seems to  be  unnecessary  when a larger bench  considers  that  a decision of a smaller bench is incorrect unless a  constitu- tional question arises. The practice over the years has been that  a larger bench straightaway considers the  correctness of  and if necessary overrules the view of a smaller  bench. This practice has been held to be a crystallised rule of law in a recent decision by a 537 special  bench  of  seven learned judges.  In  A.R.  Antulay v.R.S.  Nayak,  AIR 1988 SC 1531, Sabyasachi  Mukharji,  J., speaking for the majority said:                        "The  principle that the size of  the               bench whether it is comprised of two or  three               or more judges--does not matter, was enunciat-               ed in Young v. Bristol Aeroplace Ltd.  (supra)               and  followed  by Justice Chinnappa  Reddy  in               Javed  Ahmad  A bdul Hamid Pawla v.  State  of               Maharashtra, [1985] 2 SCR 8 where it has  been               held that a Division Bench of two judges,  has               not been followed by our courts.               XXXX                 XXXX                 XXXX               XXXX           XXXX               "The law laid down by this Court is some  what               different.  There  is a hierarchy  within  the               court  itself here where larger benches  over-               rule  smaller benches. See Mattulal v.  Radhey               Lal, [1975] 1 SCR 127: AIR 1974 SC 1596; Union               of  India v. K.S. Subramanian [1977] 1 SCR  87               at  92: AIR 1976 SC 2433 at 2437 and State  of

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             U.P.v.  Ram Chandra Trivedi, [1977] 1 SCR  462               at 473: AIR 1976 SC 2547 at 2555. This is  the               practice followed by this Court and now in  is               a crystallised rule of law."     The  answer  to the question posed in Javed  Ahmad  case thus  stands concluded and it is now not open to any one  to contend that a bench of two judges cannot be overruled by  a bench  of three judges. We must regard this as a final  seal to the controversy.     Before  grappling with the crucial issue that  has  been raised in these petitions, it would be convenient to dispose of what may be regarded as peripheral submissions. Mr.  R.K. Jain, learned counsel who led the arguments on behalf of the petitioners  referred to us in detail the  consideration  of justice, morality and usefulness of capital punishment.  The counsel also referred to us the opinion expressed by eminent persons like Shri Arvindo (Tales of Prison Life) with regard to torment in the prison life. He also invited our attention to  the dissenting opinion of Bhagwati, J., in Bachan  Singh where  learned Judge observed that the execution "serves  no social  purpose."  The learned counsel made  an  impassioned appeal  to save the life of these condemned persons by  sub- stituting  life  imprisonment on the  ground  of  inordinate delay in execution. I can really appreciate the  compassion- ate feeling with which the counsel made his submission.  The "self" in 538 him came out with every word he uttered. He seems to  belong to a faith where ’non-violence’ to every life is a must. Not that  we  are  different underneath the rotes.  As  said  by Justice Brennan, white dealing with his opinion in Furman v. Georgia.  (408 U.S. 238) "I am not, that we are each not,  a human  being with personal views and moral sensioilties  and religious scruples. But it is to say that above all, 1 am  a Judge".  (The  Oliver wendell Homes  Lecture,  delivered  in September  5,  1986). We are  flesh-and-blood  mortals  with normal  human traits. Indeed, like all others, we  too  have some  inborn aversions and acquired attractions. But  it  is not  for us while presiding over courts to decide what  pun- ishment or philosophy is good for our people. While  examin- ing  constitutional  questions, we must  never  forget  Mar- shall’s mighty phrase "that it is a constitution that we are expounding". We are oath bound to protect the  Constitution. We  are  duty bound to safeguard the life and  liberties  of persons.  We  must enforce the constitutional  commands,  no matter  what the problem. In other issues of  constitutional considerations,  we  must  understand  the  aspirations  and convictions of men and women of our time. And we should  not be  swayed by our own convictions. We must never  allow  our individuality  t0 overshadow or supersede the philosophy  of the Constitution.     These are various philosophical ideologies and underpin- nings  about the purposes of punishment. It  includes  among others deterfence, retribution, protecting persons,  punish- ing  guilty and acquitting the innocent. Among these  objec- tives deterfence and retribution are prominent.  Retribution is  often  confused  with revenge, but  there  are  distinct differences.  Retribution embodies the concept that  an  of- fender  should receive what he rightfully  deserves.  Deter- fence  has  a two fold object. The first object  relates  to specific  deterrence.  It  will deter  the  individual  from committing  the  same or other offences in the  future.  The second object is as to general deterrence. It will  convince or  deter others that "crime does not pay") (See  Crime  and Punishment’ by Harry E. Allen & Ors. at 735).

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   The Law Commission of India summarised these aspects  as to the capital sentence (35th report para 265( 18)):                        "The   fact  remains  however,   that               whenever there is a serious crime. the society               feels  a sense of disapprobation. If there  is               any  element  of retribution in  the  law,  as               administered  now, it is not the  instinct  of               the man of jungle but rather a refined  evolu-               tion of that instinct the feeling prevails  in               the public is a fact of which notice is to  be               taken. The law               539               does  not encourage it, or exploit it for  any               undesirable  ends.  Rather, by  reserving  the               death  penalty for murder, and  thus  visiting               this gravest crime with the gravest punishment               the law helps the element of retribution merge               into the element of deterrence."     Sarkaria,  J., after referring to this  report  speaking for  the majority in Bachan Singh, [19801 2 SCC 684  at  721 recognises:                        "Retribution  and deterrence are  not               two divergent ends of capital punishment. They               are  convergent goals which  ultimately  merge               into one." The  punishments are provided in order to deter crimes.  The punishments are imposed to make the threat credible. Threats and  imposition  of punishments are obviously  necessary  to deter  crimes.  As  a venerated  British  Historian,  Arthur Bryant writes "The sole justification for the death  penalty is not to punish murderers but to prevent murder." Professor Earnest Van Den Haag states:                         "The  murderer  learns  through  his               punishment that his fellow men have found  him               unworthy  of living, that because he has  mur-               dered, he is being expelled from the community               of  the living. This degradation  is  self-in-               flicted.  By  murdering, the murderer  has  so               dehumanised  himself  that  he  cannot  remain               among  the living. The social  recognition  of               his  self-degradation is the punitive  essence               of  execution." (See Harward Law Review:  1986               Vol. 99 p. 1699).     Of  course, one cannot have any empirical data to  prove that  capital punishment can be deterrent greater than  life imprisonment.  It may be that most killers as the  Professor Jack  Greenberg  states "do not engage in  anything  like  a cost-benefit  analysis.  They are impulsive  and  they  kill impulsively." The paradigm of this kind of murderers  cannot be properly accounted for. However, many classic experiments on  the  effects of corporal punishments on  dogs,  monkeys, pigeons and other animals have been conducted in  psychology laboratories.  Graeme Newman in his book "Just and  Painful" (at  127)  refers to such experiments.  The  learned  author states  that  corporal punishment works and it has  been  so successful  that  some animals have  starved  themselves  to death rather than eat the forbidden food. This position with the  human  beings is said to be not different.  Indeed,  it cannot be different as we could see from day to day life. As between life and 540 death  one lives life. It is the love of life with  sensuous joy of companionship that moves the race and not so much the ideals. One views the death with trepidation. In fact, every living being dreads death and it cannot be an exception with

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those  on death row. They like all others want to  live  and live  as  long as they can. Because, the life  has  its  own attraction, no matter in what form and condition. The  death has no such attraction and cannot have any, since it is  the most mysterious of all in this world.     The criminal law always keeps pace with the  development of  society. It reflects as Chief Justice Warren said:  "the evolving  standards of decency that mark the progress  of  a maturing  society".  (Trop..  v. Dulles, 356  U.S.  86,  101 (1958). We have much to learn from history of every country. The  punishment  which meets the unanimous approval  in  one generation,  may  rank  as the most  reprehensible  form  of cruelty  in the next. Take for instance, the  punishment  of whipping.  A  search of historical records of  16th  century England  shows that men and women were whipped  unmercifully for  trivial offences as peddling, being drunk on a  Sunday, and participating in a riot.     Many  other instances of ferocious whippings of men  and women, both for political and other offences, besprinkle and blacken English historical records. Rarely did any shred  of excuse  for  human frailty seem to enter into the  souls  of those  sitting in judgment. In the days of Charles the  Sec- ond,  however,  the Duke of York did interpose in  one  such case--he  saved  Lady  Sophia Lindsay  from  being  publicly whipped  through the streets of Edinburgh for the  crime  of assisting  at  the  escape of the Earl of  Argyle,  her  own father-in-law.     In  the  early eighteen hundreds  the  Australian  penal settlements  were  the  scene of floggings of  so  severe  a nature as to rival, for sheer savagery, the worst that  were inflicted in England during the sixteenth century, or in the southern State of America during the days of slavery. In the United  States  of America whipping was  a  favorite  seven- teenth-century  punishment  for various offences,  and  both male  and  female culprits came under the lash. Of  all  the civilized,  nations, Russia may be considered to be the  one which  not only used the whip unmercifully, but also as  the nation  which  continued to use it longer by far and  for  a greater  variety of crimes than did any other. Next to  Rus- sia,  for  sheer love of whipping, comes China,  and  little less formidable than the Russian known is the Chinese rod of split  bamboo.  The sharp edges of the bamboo cut  into  the flesh, inflicting terrible lacera- 541 tions.  Little  wonder  that deaths, as a  result  of  these floggings,  have  been frequent, and that those  who  escape this  fate are often so terribly mutilated that they  remain crippled for the rest of their lives (The History of  corpo- ral Punishment--by G.R. Scott (1948) pages 39 to 56).     Take  the history of punishment of death in England.  In 1810 Sir Samuel Romilly who asked the Parliament to  abolish the death penalty for some of crimes said "there is probably no other country in the world in which so many and so  great a variety of human actions are punishable with loss of  life as  in  England". (A History of English Criminal Law  By  L. Radzinowicz V(1) p(1).     The beginning of the nineteenth century was a period  of indiscriminate  imposition of capital punishment in  England for  numerous  widely  differing offences.  There  were  two hundred  or more such offences. There were several  legisla- tions  providing punishment of death in the reign of  George IV. All felonies except petty larceny and mayhem were  theo- retically  punishable with death. From 1827 to 1841  several legislations were passed abolishing the punishment of  death

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in a variety of cases. Burning continued till 1790 to be the punishment  inflicted on women for treason, high  or  petty. (Which latter included not only the murder by a wife of  her husband, and the murder of a master or mistress by a servant but also several offences against the coin). Burning in such cases was abolished by 30 Geo, 3, c. 48. In practice,  women were  strangled before they were burnt; this,  however,  de- pended on the executioner. In one notorious case a woman was actually  burnt alive for murdering her husband, the  execu- tioner being afraid to strangle her because he was caught by the fire. In the reign of George II, an act was passed which was  intended to make the punishment for murder more  severe than  the punishment for other capital crimes. This  was  25 Geo.  2,  c. 37, which provided that a person  convicted  of murder should be executed on the next day but one after  his sentence (unless he was tried on a Friday, in which case  he was  to be hanged on the Monday). He was to be fed on  bread and  water  in the interval and his body, after  death,  was either  to be dissected or to be hung in chains. The  judge, however,  had  power to respite or to  remit  these  special severities.  Under  this act murderers were  usually  anato- mized, but sometimes gibbeted. By the 2 & 3 Will 4, c. 7  s. 16 (for the regulation of schools of anatomy), it was enact- ed  that the bodies of murderers should no longer be  anato- mized, but that the sentence should direct that they  should either be hung in chains or a buried in the prison.  Several persons were gibbeted under this act. 542 These provisions distinguish English law in a marked  manner from  the continental laws down to the end of the last  cen- tury. In most parts of the continent breaking on the  wheel, burning  in  some cases quartering alive  and  tearing  with red-hot  pincers, were in use, as well as simpler  forms  of death.  (History of the Criminal Law of England  by  Stephen Ch. XIII p. 477-478).     Through out the reign of Henry the Eighth, there were no fewer than two thousand executions a year. As the stress  on the  value of property increased, the net was  widened.  Not alone murderers and traitors; but robbers, coiners, heretics and  witches  were sent to their death. The  shooting  of  a rabbit;  the forgery of a birth certificate; the theft of  a pocket-handkerchief; the adoption of a disguise; the  damag- ing  of a public property were also included in the list  of death  sentence. In 1814 a man was hanged at Chelmsford  for cutting down a cherry tree.     The public hangings in England continued until well into the nineteenth century. There were public executions with  a large number of people watching. On January 22, 1829, Willi- an  Burke was hanged at Edinburgh, and the crowd  was  great beyond  all former precedent. The last person to  be  hanged publicly in England was Michael Marett, who was executed  at Newgate  on  May 26, 1868. As time went past,  the  list  of death  sentence crimes was rapidly reduced and in  1950,  it was  confined for four crimes only, to wit; (1) murder,  (2) treason,  (3) piracy with violence, and (4) setting fire  to arsenals and dockyards. Later this was also abolished. (See. G.R. Scott, The History of Capital Punishment, 38-66 (1950).     What  happened in the United States? It will be  noticed that in the United States, the accused has a  constitutional right  to be tried by a Jury, as provided under  6th  Amend- ment. The accused has a right not to be subjected to  "cruel and unusual punishment" as mandated under 8th Amendment.  In Furman,  some Judges took the view that death  sentence  was unacceptable  to  the evolving standards of decency  of  the American people. But the American people rejected that view.

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Since then 35 States have re-enacted laws providing for  the death  sentence for murder of suitably altering  the  provi- sions to comply with Furman.     What do we have here? The representatives of our  people are cognizant of the contemporary social needs. The legisla- tive amendments brought about from time to time are  indica- tive  of  their awareness. Sub-sec. (5) of sec. 367  of  the Code of the Criminal Procedure, 543 1898  as it stood prior to its amendment by Act 25  of  1955 provided:                        "If  the accused is convicted  of  an               offence  punishable with death, and the  court               sentences to any punishment other than  death,               the  court  shall in its  judgment  state  the               reasons why sentence of death was not passed."     This provision laid down that if an accused was convict- ed  of an offence punishable with death, the  imposition  of death  sentence  was the rule and the awarding of  a  lesser sentence  was an exception. The court had to state the  rea- sons  for  not passing the sentence of death.  There  was  a change by the amending Act 26 of 1955 which came into  force with effect from January 1, 1956. The above sub-section  was deleted  and it was left to the discretion of the  court  in each case to pass a sentence of death or life  imprisonment. In 1973 there was again a reshaping of the provision regard- ing  the death penalty. In the Code of  Criminal  Procedure, 1973, sec. 354(3) was inserted in these terms:                         "When  the  conviction  is  for   an               offence  punishable  with  death,  or  in  the               alternative with the imprisonment for life  or               imprisonment for a term of years, the judgment               shall  state  the  reasons  for  the  sentence               awarded, and in the case of sentence of death,               the special reasons for such sentence."     It is now obligatory for the court to state reasons  for the  sentence awarded for the offence of murder.  The  court cannot award death sentence without giving special  reasons. As earlier noticed that death sentence Could be awarded only in exceptional cases and not in the usual run of murders. We have  got just six offences carrying death penalty and  that too  as  an  alternate sentence (Sections  120B,  121,  132, 302,307 and 396 IPC).     This is the need and notion of the present day  society. Tomorrow’s society and the atmosphere in which they live may be quite different. They may not have rapist murderers  like Ranga and Billa. They may not have any merciless killing and bride-burning-  They  may have more respect for  each  other life. They may be free from criminalisation of politics  and elimination of political leaders by muscle power. There then the penal law cannot remain isolated and untouched. It  will be profoundly influenced by philosophy prevailing. Time  may reach  for  the representatives of people to  consider  that death  penalty even as an alternate sentence for  murder  is uncalled for and unnecessary. There is 544 nothing  in our Constitution to preclude them from  deleting that alternate sentence. The crusade against capital punish- ment may,, therefore, go on elsewhere and not in this Court.     Let  me  now turn to the pivotal question which  I  have referred  at the beginning of the judgment. The question  is whether the sentence of life imprisonment should be  substi- tuted  on account of time factor alone, however,  right  and valid and death sentence was at the time when it was  award- ed.  The arguments for the petitioners primarily  rested  on

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the common area of agreement in Vaitheeswaran and Sher Singh cases on the implication of Article 21. The accepted princi- ple according to counsel, is that prolonged delay in  execu- tion would be "unjust, unfair and unreasonable". It would be inhuman and dehumanising to keep the condemned person for  a long period. It offends the constitutional safeguards  under Article 21.     Article  21 of the Constitution mandates the state  that no  person shah be deprived of his life or personal  liberty except  according to the procedure established by  law.  The scope  and  content  of this Article has  been  the  subject matter  of intensive examination in the recent decisions  of this Court.I do not want to add to the length of this  judg- ment by recapitulating all those decisions in detail. I  may only  highlight some of the observations which are  relevant to  the  present case. In Maneka Gandhi v. Union  of  India, [1978] 1 SCC 248 this Court gave a new dimension to  Article 21.  The seven Judge bench held that a statute which  merely prescribes some kind of procedure for depriving a person  of his life or personal liberty cannot meet the requirements of Article  21. Bhagwati, J., as he then was, while  explaining the  nature  and requirement of procedure under  Article  21 observed (at 283):                         "We  must  reiterate here  what  was               pointed out by the majority in E.P. Rayappa v.               State of Tamil Nadu, [1974] 3. SCR 348: [1974]               4  SCC (L & S) 165, namely, that from a  posi-               tivistic point of view, equally is  antithetic               to  arbitrariness. In fact equality and  arbi-               trariness  are sworn enemies; one  belongs  to               the  rule  of  law in a  republic,  while  the               other, to the whim and caprice of an  absolute               monarch.  Where  an act is  arbitrary,  it  is               implicit in it that it is unequal both accord-               ing to political logic and constitutional  law               and  is, therefore, violative of Article  14".               Article  14 strikes at arbitrariness in  State               action  and ensures fairness and  equality  of               treatment.  The principle  of  reasonableness,               which               545               legally  as  well as  philosophically,  is  an               essential  element  of equality  or  non-arbi-               trariness pervades Article 14 like a  brooding               omni-presence  and the procedure  contemplated               by Article 21 must answer the test of reasona-               bleness  in  order to be in  conformity  .with               Article  14.  It must be "right and  just  and               fair" and not "arbitrary, fanciful or  oppres-               sive", otherwise, it would be no procedure  at               all  and the requirement of Article  21  would               not be satisfied."     If  one prefers to go yet further back,  the  procedural fairness in the defence of liberties was insisted upon  even in  1952. The State of West Bengal v. Anwar Ali, [1952]  SCR 284 Bose, J., remarked (at 367):          "The  question with which I charge myself, is,  can fair-minded, reasonable, unbiased and resolute men, who  are not  swayed by emotion or prejudice, regard this with  equa- nimity  and call it reasonable, just and fair, regard it  as that’  equal  treatment  and protection in  the  defence  of liberties which is expected of a sovereign democratic repub- lic  in the conditions which obtain in India today?  I  have but  one answer to that. On that short and simple  ground  I would decide this case and hold the Act bad."

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In Bachan Singh case, Sarkaria, J., affirming this view said (at 730):                         "No person shall be deprived of  his               life  br personal liberty except according  to               fair,  just  and reasonable  procedure  estab-               lished by valid law."     In  Mithu v. State of Punjab, [1983] 2 SCC 277  Chandra- chud. C.J., said (at 284):                         "   ....  that the last word on  the               question of justice and fairness does not rest               with  the legislature. Just as  reasonableness               of  restrictions under clauses (2) to  (6)  of               Article 19 is the for the courts to               determine,  so is it for the courts to  decide               whether the procedure prescribed by a law  for               depriving  a person of his life or liberty  is               fair, just and reasonable."     In  Sher  Singh  v. State of Punjab, [1983]  2  SCC  582 Chandrachud, C.J. again explained (at 593): 546                        "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 endea-               vour  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  impo-               sition of that sentence and its execution. The               essence of the matter is that all procedure no               matter  the  stage,  must be  fair,  just  and               reasonable."     Article  21  thus received a  creative  connotation.  It demands  that  any procedure which takes away the  life  and liberty  of persons must be reasonable, just and  fair.  The procedural  fairness  is required to be  observed  at  every stage and till the last breath of the life.     In Vaitheeswaran the court thought that the delay of two years would make it unreasonable under Article 21 to execute death  sentence. The court did not attach importance to  the cause  of  delay.  The Cause of delay  was  immaterial.  The accused himself may be responsible for the delay. The  court said  that  the appropriate relief would be  to  vacate  the death sentence and substitute life imprisonment instead.     The  learned counsel for the petitioners argued that  if two years period of delay set out in Vaitheeswaran does  not present  favourably,  we  may fix any other  period  but  we should not disturb the basis of the decision. He invited our attention  to  a  number of authorities  where  courts  have awarded life imprisonment on the ground of delay in disposal of cases.     In Vivian Rodrick v. The State of West Bengal, [1971]  1 SCR 468 six years delay was considered sufficient for impos- ing a lesser sentence of imprisonment for life. In State  of U.P.  v.  Paras  Nath Singh & Ors., [1973] 3  SCC  647,  the Court,  while reversing the order of acquittal awarded  life imprisonment  on the ground that the accused was under  sen- tence  of  death till he was acquitted by  the  High  Court. Similar  was the view taken in State of Bihar  v.  Pashupati Singh,  [1974] 3 SCC 376; State of U.P. v. Suresh, [1981]  3 SCC 635 at 643 and State of U.P. v. Sahai, [1982] 1 SCC 352.     In  State of U.P.v. Suresh, the accused was  given  life imprisonment  in  view  of the fact  that  seven  years  had

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elapsed  after the date of murder. In Ram Adhar v. State  of U.P., [1979] 3 SCC 774 at 777, the 547 delay  of  six years from the date of  occurrence  was  held sufficient to commute the sentence of death to life  impris- onment.  The  court also observed that the accused  was  not responsible  in  any manner for the lapse of time  that  has occurred.     In Nethi Sreeramulu v. State of A. P., [1974] 3 SCC 3 14 the Court while disposing of the appeal in 1973 commuted the sentence  of  death given in 1971 to life  imprisonment.  In State  of  U.P.v. Lalla Singh & Ors., [1978] 1 SCC  142  six years delay from the date of judgment of the trial court was a consideration for not giving the death sentence. In  Sadhu Singh  v. State of U.P., [1978] 4 SCC 428 about three  years and seven months during which the accused was under  spectre of death sentence, was one of the relevant factors to reduce the sentence to life imprisonment.     There are equally other decisions where in spite of  the delay  in  disposal of the case, the Court has  awarded  the death  sentence.  In Nachhittar Singh v.  State  of  Punjab, [1975] 3 SCC 266, the court refused to consider the question of  delay as a mitigating circumstances. In Maghar  Sing  v. State of Punjab, [19751 4 SCC 234, the court said that delay does not appear to be good ground to commute to life impris- onment in view of the pre-planned, cold-blooded and dastard- ly murder committed by the accused. In Lajar Mashi v.  State of  U.P., [1976] 1 SCC 806, the court while  confirming  the death sentence observed (at 809):                         "The value of such delay as a  miti-               gating  factor depends upon the features of  a               particular  case. It cannot be  divorced  from               the  diabolical  circumstances  of  the  crime               itself,  which,  in  the  instant  case  fully               justify the award of capital sentence for  the               murder of the deceased. We, therefore,  uphold               the  award  of  the capital  sentence  to  the               appellant and dismiss his appeal."      All these decisions are of little use to determine  the constitutionality of execution of the death sentence on  the relevance of delay. These decisions relate to the sentencing discretion of courts with which we are not concerned. We are concerned  with  the  right of the accused  to  demand  life imprisonment after the final verdict of death sentence  with every justification to impose it.      The demand for life imprisonment herein as solely based on the ground of prolonged delay in the execution. The delay which is sought 548 tO be relied upon by the accused consists of two parts.  The first  part covers the time taken in the  judicial  proceed- ings. It is the time that the parties have spent for  trial, appeal,  further  appeal and review. The second  part  takes into fold the time utilized by the executive in the exercise of its prerogative clemency.     I start with the first part of the delay. In Vaitheeswa- ran this part of the delay was expressly taken into  consid- eration.  It  was observed that the period of two  years  as prolonged  detention  would include the time  necessary  for appeal  from  the  sentence of death  and  consideration  of reprieve.  In Sher Singh, this period has not been  accepted as  good measure. The court said that the fixation  of  time limit of two years did not accord with the common experience of time normally consumed by the litigative process and  the proceedings before the Government.

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   Mr. Parasaran, learned Attorney General has altogether a different approach and in my opinion very rightly. He argued that  the time spent by the courts in  judicial  proceedings was  intended  to  ensure a fair trial to  the  accused  and cannot  be  relied upon by the same accused to  impeach  the execution of the death sentence. The relevant provisions  in the  Indian  Penal Code, the Criminal  Procedure  Code,  the Evidence  Act and the Rules made by the High Courts and  the Supreme  Court  governing the trial,  appeal,  execution  of sentence,  etc., were all highlighted. According to  learned Attorney, these provisions are meant to examine the guilt or innocence of the accused and to have an appropriate sentence commensurate with the gravity of the crime. They  constitute reasonable procedure, established by law.     I  entirely agree. The time taken in the  judicial  pro- ceedings  by way of trial and appeal was for the benefit  of the  accused. It was intended to ensure a fair trial to  the accused and to avoid hurry-up justice. The time is spent  in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sentencing or the appellate court while  dispos- ing  of  the  appeal may consider the delay  and  the  cause thereof  along  with other circumstances. The  court  before sentencing  is bound to hear the parties and take  into  ac- count every circumstance for and against the accused. If the court  awards death sentence, notwithstanding the  delay  in disposal  of the case, there cannot be a second look at  the sentence  save  by way of review. There cannot be  a  second trial  on the validity of sentence based on Article 21.  The execution  which is impugned is execution of a judgment  and not apart from judgment. If the judgment 549 with the sentence awarded is valid and binding, it falls  to be executed in accordance with law since it is a part of the procedure  established  by law. Therefore, if the  delay  in disposal  of the case is not a mitigating  circumstance  for lesser sentence, it would be, in my opinion, wholly inappro- priate  to  fall  back upon the same delay  to  impeach  the execution.     If  the delay in passing the sentence render the  execu- tion  unconstitutional, the delay subsequent thereof  cannot also render it unconstitutional. Much less any fixed  period of delay could be held to make the sentence inexecutable. It would  be  arbitrary  to fix any period  of  limitation  for execution  on the ground that it would be a denial of  fair- ness  in  procedure under Article 21. With  respect,  I,  am unable to agree with the view taken in Vatheeswaram case  on this aspect.     Under  Article  72 of the  Constitution,  the  President shall  have the power to "grant pardons, deprives,  respites or remissions of punishment or to suspend, remit or  commute the  sentence of any person convicted in an offence".  Under Article 161 of the Constitution, similar is the power of the Governor  to  give  relief to any person  convicted  of  any offence  against any law relating to a matter to  which  the executive power of the State extends. The time taken by  the executive  for disposal of mercy petitions may  depend  upon the nature of the case and the scope of enquiry to be  made. It  may also depend upon the number of mercy petitions  sub- mitted by or on behalf of the accused. The Court, therefore, cannot  prescribe  a time limit for .disposal  Of  even  for mercy petitions.     It  is, however, necessary to point out that Article  21 is  relevant at all stages. This Court has  emphasized  that "the  speedy trial in criminal cases though not  a  specific

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fundamental  right, is implicit in the broad sweep and  con- tent  of Article 21". (See: Hussainara Khatoon v. The  State of Bihar, [1979] 3 SCR 169 and 1980 (1) SCC 81. Speedy trial is  a part of one’s fundamental right to life  and  liberty. (See Kadra Pahadiya v. State of Bihar, [1981] 3 SCC 671  and 1983  2 SCC 104. This principle, in my opinion, is  no  less important  for disposal of mercy petition. It has been  uni- versally recognised that a condemned person has to suffer  a degree  of mental torture even though there is  no  physical mistreatment  and no primitive torture. He may  be  provided with  amenities of ordinary inmates in the prison as  stated in  Sunil Batra v. Delhi Administration, [1978] 4  SCC  491, but nobody could succeed in giving him peace of mind. 550 Chita Chinta Dwayoormadhya, Chinta tatra gariyasi, Chita Dahati Nirjivam, Chinta dahati Sajeevakam.     As  between  funeral fire and mental worry,  it  is  the latter  which  is more devastating, for, funeral  fire  bums only  the dead body while the mental worry burns the  living One. This mental torment may become acute when the  judicial verdict  is finally set against the accused. Earlier to  it, there  was every reason for him to hope for acquittal.  That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned  pris- oner is entitled to come to the court requesting to  examine whether, it is just and fair to allow the sentence of  death to be executed.     What  should be done by the Court is the next point  for consideration. It is necessary to emphasise that the  juris- diction of the Court at this stage is extremely limited.  If the Court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any  delay either  in listing or in disposal of the matter. The  person who complains about the delay in the execution should not be put to further delay. The matter, therefore, must be expedi- tiously  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 Article  226 or under Article 32 of the  Constitution  after the  final judgment affirming the conviction  and  sentence. The  Court  may only consider whether there was  undue  long delay in disposing of mercy petition; whether the State  was guilty of dilatory conduct and whether the delay was for  no reason  at all. The inordinate delay, may be  a  significant factor,  but  that  by itself cannot  render  the  execution unconstitutional. Nor it can 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 596):           "The  nature of the offence, the  diverse  circum- stances attendant upon it, its impact upon the  contemporary society and the question whether the motivation and  pattern of 551 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  last contention urged for the petitioners that  the accused  should not be executed if he was since improved  is

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unavailable  since  it seeks to substitute a  new  procedure which the Code does not provide for.     We have already considered all these cases in the  light of  these  principles and disposed them of  by  our  earlier unanimous order. N .P.V. 552