Mercy petitions - Extraordinary delay in disposing of mercy petition by the office of President - with out the fault of accused are entitled for commutation of death sentence in to life and whether the accused has to prove his sorrow before getting commutation due to delay in president office - Apex court held that Delay itself is enough to say the sorrowful conditions of the accused - no positive proof is necessary and apart from the accused pleaded the same in their letters too - Apex court allowed the petitions =
[Allowing a person to live under a freezed condition is more severe punishment than death punishment - No words No signs require to define his story - his status itself speaks the facts..............advocatemmmohan]
whether in
Shatrughan Chauhan (supra), this Court, laid down for actually proving the
dehumanizing effect on the accused or mere unreasonable and inordinate
delay on face of it is sufficient for commutation of death sentence to
life. =
the argument that the petitioners are under a legal obligation
to produce evidence of their sufferings and harm caused to them on account
of prolonged delay is unknown to law and will be misinterpretation of
Shatrughan Chauhan (supra).
There is no obligation on the convict
to demonstrate specific ill effects of suffering and agony on his mind and
body as a prerequisite for commutation of sentence of death.
“Sir, 16 years have passed since I and my wife were imprisoned. The
female child born to us in jail is suffering without security and
education as a nomad. During this long time, the suffering undergone
and undergoing now by our family members can not be said in words.
Thinking of punishing me have punished my entire family. So, my life
in jail has become a living death.”
Shatrughan Chauhan & Anr. vs. Union of India & Ors. [Writ Petition
(Criminal) No. 55 of 2013 etc.] decided on 21.01.2014
The relevant portion of Shatrughan Chauhan (supra), is as under:-
“42) Accordingly, if there is undue, unexplained and inordinate delay
in execution due to pendency of mercy petitions or the executive as
well as the constitutional authorities have failed to take note
of/consider the relevant aspects, this Court is well within its powers
under Article 32 to hear the grievance of the convict and commute the
death sentence into life imprisonment on this ground alone however,
only after satisfying that the delay was not caused at the instance of
the accused himself…”
*** *** ***
“54) … Therefore, in the light of the aforesaid elaborate discussion,
we are of the cogent view that undue, inordinate and unreasonable
delay in execution of death sentence does certainly attribute to
torture which indeed is in violation of Article 21 and thereby entails
as the ground for commutation of sentence. However, the nature of
delay i.e. whether it is undue or unreasonable must be appreciated
based on the facts of individual cases and no exhaustive guidelines
can be framed in this regard.”
Accordingly, the case at hand has to be decided under the guidance of
this judgment. The two principles stipulated in the judgment for
commutation of death sentence into life imprisonment on the ground of delay
as the supervening circumstance are firstly, that the delay occurred must
be inordinate and secondly, that the delay must not be caused at the
instance of the accused.
2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41228
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
1 TRANSFERRED CASE (CRIMINAL) NO. 1 OF 2012
V. Sriharan @ Murugan .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
2
3 WITH
4
5 TRANSFERRED CASE (CRIMINAL) NO. 2 OF 2012
T. Suthendraraja @ Santhan .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
6 TRANSFERRED CASE (CRIMINAL) NO. 3 OF 2012
A.G. Perarivalan @ Arivu .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
J U D G M E N T
P.Sathasivam, CJI.
1) The above transferred cases which were borne out of the writ petitions
filed by V. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G.
Perarivalan @ Arivu in the Madras High Court and which got transferred to
this Court under Article 139A of the Constitution of India raise vital
issues pertaining to violation of fundamental rights of death row convicts
ensuing from inordinate delay caused at the hands of executive in deciding
the mercy petitions filed under Article 72/161 of the Constitution. In all
the writ petitions, the petitioners prayed for a writ of declaration
declaring that the execution of the sentence of death, pursuant to the
letter No. F.No.14/1/1999-Judicial Cell dated 12.08.2011 issued by the
Union of India, is unconstitutional and thus sought for commutation of the
sentence of death to imprisonment for life.
2) Akin to this issue was decided by us in a recent judgment viz.,
Shatrughan Chauhan & Anr. vs. Union of India & Ors. [Writ Petition
(Criminal) No. 55 of 2013 etc.] decided on 21.01.2014 wherein this Court
held that execution of sentence of death on the accused notwithstanding the
existence of supervening circumstances, is in violation of Article 21 of
the Constitution. One of the supervening circumstances sanctioned by this
Court for commutation of death sentence into life imprisonment is the
undue, inordinate and unreasonable delay in execution of death sentence as
it attributes to torture. However, this Court, cogently clarified in its
verdict that the nature of delay i.e. whether it is undue or unreasonable
must be appreciated based on facts of individual cases and no exhaustive
guidelines can be framed in this regard.
The relevant portion of Shatrughan
Chauhan (supra), is as under:-
“42) Accordingly, if there is undue, unexplained and inordinate delay
in execution due to pendency of mercy petitions or the executive as
well as the constitutional authorities have failed to take note
of/consider the relevant aspects, this Court is well within its powers
under Article 32 to hear the grievance of the convict and commute the
death sentence into life imprisonment on this ground alone however,
only after satisfying that the delay was not caused at the instance of
the accused himself…”
*** *** ***
“54) … Therefore, in the light of the aforesaid elaborate discussion,
we are of the cogent view that undue, inordinate and unreasonable
delay in execution of death sentence does certainly attribute to
torture which indeed is in violation of Article 21 and thereby entails
as the ground for commutation of sentence. However, the nature of
delay i.e. whether it is undue or unreasonable must be appreciated
based on the facts of individual cases and no exhaustive guidelines
can be framed in this regard.”
3) Accordingly, the case at hand has to be decided under the guidance of
this judgment. The two principles stipulated in the judgment for
commutation of death sentence into life imprisonment on the ground of delay
as the supervening circumstance are firstly, that the delay occurred must
be inordinate and secondly, that the delay must not be caused at the
instance of the accused. Let us assess the facts of the given case in the
light of established principles in Shatrughan Chauhan (supra).
Factual Background:
4) In these petitions, we are concerned only with the rejection of the
mercy petitions of the petitioners by the President of India under Article
72 of the Constitution after the confirmation of death sentence by this
Court, thus there is no need to traverse the factual details leading up to
the imposition of death sentence.
5) Initially, the mercy petitions were filed before the Governor of
Tamil Nadu on 17.10.1999 and the Governor, on 27.10.1999, rejected the
same. Subsequently, the said rejection was challenged before the Madras
High Court in W.P. Nos. 17655-17658 of 1999 on the ground that the mercy
petitions were decided without consulting the Council of Ministers, which
is unsustainable in law. Accordingly, by order dated 25.11.1999, the
Madras High Court set aside the order of rejection of mercy petitions by
the Governor and directed to reconsider the mercy petitions afresh.
Thereafter, on 25.04.2000, the Governor again rejected the mercy petitions.
6) Consequently, the mercy petitions were forwarded to the President on
26.04.2000 for consideration under Article 72 of the Constitution. The
President, on 12.08.2011, rejected these mercy petitions after a delay of
more than 11 years. The rejection of the aforesaid petitions was
communicated to the petitioners on 25.08.2011. Subsequently, the said
rejection was also challenged in W.P. Nos. 20287-20289 of 2011 before the
Madras High Court on 29.08.2011. Later, by order dated 01.05.2012, in
Transfer Petition (Criminal) Nos. 383-385 of 2011 and 462-464 of 2011, this
Court transferred all the three writ petitions to this Court in the
interest of justice. Pursuant to the aforesaid order, the Madras High Court
transmitted the original records to this Court, which have been registered
as Transferred Case (Criminal) Nos. 1-3 of 2012. All the petitioners are
currently lodged in the Central Prison, Vellore, Tamil Nadu and they are in
incarceration since 1991, i.e., for more than two decades.
7) Heard Mr. Ram Jethmalani, learned senior counsel, Mr. Yug Mohit
Chaudhary, learned counsel for the petitioners and Mr. Goolam E. Vahanvati,
learned Attorney General and Mr. Sidharth Luthra, learned Additional
Solicitor General for the Union of India.
Contentions:
8) The only contention, as projected by Mr. Ram Jethmalani, learned
senior counsel and Mr. Yug Mohit Chaudhary, learned counsel for the
petitioners is that
in view of inordinate delay of more than 11 years in
disposal of mercy petitions, the sentence of death imposed upon the
petitioners herein is liable to be commuted to life imprisonment as it is
violative of Article 21 of the Constitution in addition to various
International Conventions, Universal Declarations, to which India is a
signatory. In support of their contention, they heavily relied on
Shatrughan Chauhan (supra).
9) On the other hand, Mr. Goolam E. Vahanvati, learned Attorney General,
assisted by Mr. Sidharth Luthra, learned Additional Solicitor General,
submitted that the delay caused was not at the instance of the head of the
executive and is not unreasonable. They further submitted that even if
there was inordinate delay in disposal of mercy petitions in the light of
the principles enunciated in Shatrughan Chauhan (supra) and also from the
information furnished by the petitioners in their affidavits filed before
the High Court praying for commutation, the petitioners have not made out a
case for passing similar order of commutation as ordered in Shatrughan
Chauhan (supra).
Points for Consideration:
10) Firstly, as mentioned earlier, the question
whether inordinate delay
in disposing of mercy petitions is a supervening circumstance for
commutation of sentence of death into life imprisonment is well settled in
view of the recent verdict in Shatrughan Chauhan (supra). As a result, the
task before this Court is confined only to finding out
whether the nature
of delay caused is reasonable or inordinate in the light of the
circumstances of the given case and to verify whether the delay was caused
at the instance of accused.
11) The second point for consideration before this Court is
whether in
Shatrughan Chauhan (supra), this Court, laid down for actually proving the
dehumanizing effect on the accused or mere unreasonable and inordinate
delay on face of it is sufficient for commutation of death sentence to
life.
Discussion:
12) After having carefully analyzed all the materials and rival
contentions, now let us venture to distinctively discuss on the aforesaid
issues. At the outset, let us examine whether the delay of 11 years in
disposing of mercy petitions is unreasonable and inordinate in the light of
the facts of the given case.
13) Following the rejection of mercy petitions of the petitioners herein
by the Governor on 25.04.2000, these petitions were forwarded to the
Ministry of Home Affairs, Government of India on 04.05.2000.
After an
unreasonable delay of 5 years and 1 month, on 21.06.2005, the Ministry of
Home Affairs submitted the petitioners’ mercy petitions to the President
for consideration.
Thereafter, on 23.02.2011, the Ministry of Home Affairs
recalled the petitioners’ mercy petitions from the office of the President.
Here also, there was a delay of 5 years and 8 months.
Ultimately, the
President, on 12.08.2011, rejected these mercy petitions after a delay of
more than 11 years.
14) Across the bar, learned Attorney General, while explaining the delay
ensued i.e., 5 years and 1 month submitted that shortly after the receipt
of the mercy petitions in 2000, a note was prepared but thereafter the file
was lying in the drawer of some officer of the Ministry of Home Affairs,
and, hence, could not be processed. As regards delay of 5 years and 8
months, learned Attorney General fairly admitted that this delay couldn’t
be explained in any way.
15) It is, therefore, indisputable that the delay ensued in the given
petitions is inordinate and unreasonable and the same was not caused at the
instance of the petitioners. Accordingly, the unreasonable delay caused
qualifies as the supervening circumstance, which warrants for commutation
of sentence of death into life imprisonment as stipulated in Shatrughan
Chauhan (supra), inter alia, the judicial decisions in Triveniben vs. State
of Gujarat (1988) 4 SCC 574, Sher Singh and Ors. vs. State of Punjab (1983)
2 SCC 344 and T.V. Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC 68.
16) Exorbitant delay in disposal of mercy petition renders the process of
execution of death sentence arbitrary, whimsical and capricious and,
therefore, inexecutable.
Furthermore, such imprisonment, occasioned by
inordinate delay in disposal of mercy petitions, is beyond the sentence
accorded by the court and to that extent is extra-legal and excessive.
Therefore, the apex constitutional authorities must exercise the power
under Article 72/161 within the bounds of constitutional discipline and
should dispose of the mercy petitions filed before them in an expeditious
manner.
17) As regards the second contention, it was argued by learned Attorney
General that the test laid down by this Court in cases involving delayed
mercy petitions requires the petitioners to actively demonstrate the
sufferings occasioned by the delay, and that in the present case, the
petitioners have been having a good time in prison and they have not
suffered at all. Hence, it is argued that the petitioners are not entitled
to relief.
18) Before we advert to respond the aforesaid contention, it is relevant
to comprehend the primary ground on the basis of which the relief was
granted in cases of delayed disposal of the mercy petition and that is,
such delay violates the requirement of a fair, just and reasonable
procedure.
Regardless and independent of the suffering it causes, delay
makes the process of execution of death sentence unfair, unreasonable,
arbitrary and capricious and thereby, violates procedural due process
guaranteed under Article 21 of the Constitution and the dehumanizing effect
is presumed in such cases.
It is in this context, this Court, in past, has
recognized that incarceration, in addition to the reasonable time necessary
for adjudication of mercy petitions and preparation for execution, flouts
the due process guaranteed to the convict under Article 21 which inheres in
every prisoner till his last breath.
19) This Court has consistently held that prolonged delay in execution of
death sentence, by itself, gives rise to mental suffering and agony which
renders the subsequent execution of death sentence inhuman and barbaric.
In Shatrughan Chauhan (supra), this Court held as under:
“33) This is not the first time when the question of such a nature is
raised before this Court. In Ediga Anamma vs. State of A.P., 1974(4)
SCC 443 Krishna Iyer, J. spoke of the “brooding horror of haunting the
prisoner in the condemned cell for years”. Chinnappa Reddy, J. in
Vatheeswaran (supra) said that prolonged delay in execution of a
sentence of death had a dehumanizing effect and this had the
constitutional implication of depriving a person of his life in an
unjust, unfair and unreasonable way so as to offend the fundamental
right under Article 21 of the Constitution. Chinnappa Reddy, J.
quoted the Privy Council’s observation in a case of such an inordinate
delay in execution, viz., “The anguish of alternating hope and despair
the agony of uncertainty and the consequences of such suffering on the
mental, emotional and physical integrity and health of the individual
has to be seen.” …”
*** *** ***
“39) Keeping a convict in suspense while consideration of his mercy
petition by the President for many years is certainly an agony for
him/her. It creates adverse physical conditions and psychological
stresses on the convict under sentence of death. Indisputably, this
Court, while considering the rejection of the clemency petition by the
President, under Article 32 read with Article 21 of the Constitution,
cannot excuse the agonizing delay caused to the convict only on the
basis of the gravity of the crime.”
*** *** ***
“43) The procedure prescribed by law, which deprives a person of his
life and liberty must be just, fair and reasonable and such procedure
mandates humane conditions of detention preventive or punitive. In
this line, although the petitioners were sentenced to death based on
the procedure established by law, the inexplicable delay on account of
executive is unexcusable. Since it is well established that Article 21
of the Constitution does not end with the pronouncement of sentence
but extends to the stage of execution of that sentence, as already
asserted, prolonged delay in execution of sentence of death has a
dehumanizing effect on the accused. Delay caused by circumstances
beyond the prisoners’ control mandates commutation of death sentence.
In fact, in Vatheeswaran (supra), particularly, in para 10, it was
elaborated where amongst other authorities, the minority view of Lords
Scarman and Brightman in the 1972 Privy Council case of Noel Noel
Riley vs. Attorney General, (1982) Crl. Law Review 679 by quoting
“sentence of death is one thing, sentence of death followed by lengthy
imprisonment prior to execution is another”.”
20) Thus, the argument that the petitioners are under a legal obligation
to produce evidence of their sufferings and harm caused to them on account
of prolonged delay is unknown to law and will be misinterpretation of
Shatrughan Chauhan (supra).
Such a prerequisite would render the
fundamental rights guaranteed under Part III of the Constitution beyond the
reach of death-row convicts and will make them nugatory and inaccessible
for all intent and purposes. Besides, there is no requirement in Indian law
as well as in international judgments for a death-row convict to prove
actual harm occasioned by the delay. There is no obligation on the convict
to demonstrate specific ill effects of suffering and agony on his mind and
body as a prerequisite for commutation of sentence of death.
21) In any case, the petitioners have extensively pleaded the nature of
their sufferings both in the petitions as well as in the reminder letters
which each of them repeatedly have sent to the President which remained
unheeded. As regards the argument of learned Attorney General, viz., the
petitioners were enjoying themselves in prison, a perusal of specific
averments in their writ petitions filed before the High Court shows a
different picture. All the petitioners highlighted that the delay caused
unendurable torture to them and they repeatedly requested the authorities
to forthwith decide their mercy petitions.
22) In Transferred Case (Crl.) No. 1 of 2012 (V. Sriharan @ Murugan), in
Writ Petition No. 20287 of 2011 filed before the High Court, in para 5, the
petitioner has expressed his grievance in the following manner:
“I state that the extraordinary and unjustified delay in deciding my
mercy petition is entirely caused by the office of the Hon’ble
President of India. For each day after the sentence of death was
confirmed by the Hon’ble Supreme Court, and while my mercy petition
was pending before the Hon’ble President of India, my family and I
have undergone a living hell not knowing whether I would live or die,
and whether I would live to see another day or draw another breath, or
whether that day and that breath would be my last. I state that I
have been swinging between life and death for these past many years
confined in a single cell. I state that I have suffered enough and
that it would not be in the interests of justice to compound this
suffering by executing me. I submit that the interests of justice
would be served by converting the sentence of death to one of life
imprisonment. I state that cases where the delay has been less than
half of what it is in the present case have been held by the Hon’ble
Supreme Court and this Hon’ble Court to be unconscionable and
excessive and in breach of Article 21, warranting substitution of
death sentence by a sentence of life.”
In paragraph 22, the petitioner has stated as under:
“I state that I have been in custody since 4.6.1991, i.e. for more
than 20 years. I have been under sentence of death since the
judgment of the trial court on 28.1.1998, i.e. for more than 13
years and 7 months. I further state that after the rejection of my
review petition by the Supreme Court on 8.10.1999, i.e. for a period
of about 11 years and 10 months, I have lived under the shadow of
the hangman’s noose. During this period, I have been kept in a
single cell, with the threat of imminent death hanging over my head.
My mercy petition was filed more than 11 years and 4 months ago
(about 4100 days). During this long period, I have suffered
excruciating mental agony and torture of a kind that is difficult to
imagine or conceptualize. I have been swinging between life and
death, believing every waking minute to be my last, not knowing
whether I will be spared or not, and when the hangman’s noose will
close around my neck. Every person passing my prison cell is
imagined to be the harbinger of news regarding the outcome of the
mercy petition, or the date of my execution. Such torment is a
punishment far worse than death.”
23) In the year 2005, the petitioner-Sriharan @ Murugan sent a
representation to the President of India reminding the pendency of his
mercy petition. In that letter, apart from highlighting his pathetic
position, he asserted that “it has been 5 years since I had sent my
petition requesting Justice. I live like a moving dead body with the rope
tangling in front of my eyes always in solitary confinement. I request
justice but not mercy.”
24) In another letter dated 17.06.2006, addressed to the President, he
asserted to the sufferings of his family members in the following words:
“For about 8 years, I have been serving sentence as death sentence
convict. So, the sufferings of my parents, brothers, wife and
daughter can not be described in words. I ask God daily why they
should suffer due to me. No body knows how many times the convicts
who are sentenced to death like me die and how many times they dream
about their being hanged and no body knows about this truth. No one
who loves consciousness, humanity and truth do not fear death. But
with the aim of making sacrificial goat, after being sentenced to
death, and justice is not done for years together and being harassed
and under the circumstances, there is every change for a man to
disintegrate. When one’s life is unreasonably wasted, no human being
can lead life without fear or suffering. This confusion and fear is
very bad misery. I have been suffering this for many years. I
request you to grant reduction of punishment and render justice at the
earliest.”
In the subsequent letter dated 10.03.2007, addressed to the President of
India, the petitioner has stated:
“Sir, 16 years have passed since I and my wife were imprisoned. The
female child born to us in jail is suffering without security and
education as a nomad. During this long time, the suffering undergone
and undergoing now by our family members can not be said in words.
Thinking of punishing me have punished my entire family. So, my life
in jail has become a living death.”
In the same way, he also made several subsequent letters to the President
highlighting his pathetic position, torture, sufferings of his family, etc.
25) In Transferred Case (Crl.) No. 2 of 2012 (T. Suthendraja @ Santhan)
in Writ Petition No. 20288 of 2011 filed before the High Court and
Transferred Case (Crl.) No. 3 of 2012 (A.G. Perarivalan @ Arivu) in Writ
Petition No. 20289 of 2011 filed before the High Court, both the
petitioners/death convicts have expressed their grievance in similar terms
like the co-convict Murugan. These petitioners also sent similar letters
to the President highlighting their agony in the prison and prayed for
earlier disposal of their mercy petitions. They also highlighted
sufferings on account of solitary confinement, mental agony, etc.
26) Having perused all the averments specifically averred in the writ
petitions as well as the copies of the communication addressed to the
Ministry of Home Affairs and to the President of India and also in view of
other information/materials available in the affidavit filed before the
High Court in the year 2011, we are unable to accept the views expressed by
learned Attorney General on this point.
Conclusion:
27) At the outset, we once again clarify that the relief sought for under
these kind of petitions is not per se review of the order passed under
Article 72/161 of the Constitution on merits but on the ground of violation
of fundamental rights guaranteed under the Constitution to all the citizens
including the death row convicts.
28) The clemency procedure under Article 72/161 provides a ray of hope to
the condemned prisoners and his family members for commutation of death
sentence into life imprisonment and, therefore, the executive should step
up and exercise its time-honored tradition of clemency power guaranteed in
the Constitution one-way or the other within a reasonable time. Profuse
deliberation on the nature of power under Article 72/161 has already been
said in Shatrughan Chauhan (supra) and we embrace the same in the given
case as well.
29) We are confident that the mercy petitions filed under Article 72/161
can be disposed of at a much faster pace than what is adopted now, if the
due procedure prescribed by law is followed in verbatim. The fact that no
time limit is prescribed to the President/Governor for disposal of the
mercy petition should compel the government to work in a more systematized
manner to repose the confidence of the people in the institution of
democracy. Besides, it is definitely not a pleasure for this Court to
interfere in the constitutional power vested under Article 72/161 of the
Constitution and, therefore, we implore upon the government to render its
advice to the President within a reasonable time so that the President is
in a position to arrive at a decision at the earliest.
30) Before we conclude, we would also like to stress on one more aspect.
We have learnt that the Union Government, considering the nature of the
power under Article 72/161, set out certain criteria in the form of
circular for deciding the mercy petitions. We hereby recommend that in view
of the recent jurisprudential development with regard to delay in
execution, another criteria may be added to the existing yardsticks so as
to require consideration of the delay that may have occurred in disposal of
a mercy petition.
31) In the light of the above discussion and observations, in the cases
of V. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @
Arivu, we commute their death sentence into imprisonment for life. Life
imprisonment means end of one’s life, subject to any remission granted by
the appropriate Government under Section 432 of the Code of Criminal
Procedure, 1973 which, in turn, is subject to the procedural checks
mentioned in the said provision and further substantive check in Section
433-A of the Code. All the writ petitions are allowed on the above terms
and the transferred cases are, accordingly, disposed of.
……….…………………………CJI.
(P. SATHASIVAM)
……….……………………………J.
(RANJAN GOGOI)
..….….……………………………J.
(SHIVA KIRTI SINGH)
NEW DELHI;
FEBRUARY 18, 2014.
-----------------------
20
[Allowing a person to live under a freezed condition is more severe punishment than death punishment - No words No signs require to define his story - his status itself speaks the facts..............advocatemmmohan]
whether in
Shatrughan Chauhan (supra), this Court, laid down for actually proving the
dehumanizing effect on the accused or mere unreasonable and inordinate
delay on face of it is sufficient for commutation of death sentence to
life. =
the argument that the petitioners are under a legal obligation
to produce evidence of their sufferings and harm caused to them on account
of prolonged delay is unknown to law and will be misinterpretation of
Shatrughan Chauhan (supra).
There is no obligation on the convict
to demonstrate specific ill effects of suffering and agony on his mind and
body as a prerequisite for commutation of sentence of death.
“Sir, 16 years have passed since I and my wife were imprisoned. The
female child born to us in jail is suffering without security and
education as a nomad. During this long time, the suffering undergone
and undergoing now by our family members can not be said in words.
Thinking of punishing me have punished my entire family. So, my life
in jail has become a living death.”
Shatrughan Chauhan & Anr. vs. Union of India & Ors. [Writ Petition
(Criminal) No. 55 of 2013 etc.] decided on 21.01.2014
The relevant portion of Shatrughan Chauhan (supra), is as under:-
“42) Accordingly, if there is undue, unexplained and inordinate delay
in execution due to pendency of mercy petitions or the executive as
well as the constitutional authorities have failed to take note
of/consider the relevant aspects, this Court is well within its powers
under Article 32 to hear the grievance of the convict and commute the
death sentence into life imprisonment on this ground alone however,
only after satisfying that the delay was not caused at the instance of
the accused himself…”
*** *** ***
“54) … Therefore, in the light of the aforesaid elaborate discussion,
we are of the cogent view that undue, inordinate and unreasonable
delay in execution of death sentence does certainly attribute to
torture which indeed is in violation of Article 21 and thereby entails
as the ground for commutation of sentence. However, the nature of
delay i.e. whether it is undue or unreasonable must be appreciated
based on the facts of individual cases and no exhaustive guidelines
can be framed in this regard.”
this judgment. The two principles stipulated in the judgment for
commutation of death sentence into life imprisonment on the ground of delay
as the supervening circumstance are firstly, that the delay occurred must
be inordinate and secondly, that the delay must not be caused at the
instance of the accused.
2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41228
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
1 TRANSFERRED CASE (CRIMINAL) NO. 1 OF 2012
V. Sriharan @ Murugan .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
2
3 WITH
4
5 TRANSFERRED CASE (CRIMINAL) NO. 2 OF 2012
T. Suthendraraja @ Santhan .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
6 TRANSFERRED CASE (CRIMINAL) NO. 3 OF 2012
A.G. Perarivalan @ Arivu .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
J U D G M E N T
P.Sathasivam, CJI.
1) The above transferred cases which were borne out of the writ petitions
filed by V. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G.
Perarivalan @ Arivu in the Madras High Court and which got transferred to
this Court under Article 139A of the Constitution of India raise vital
issues pertaining to violation of fundamental rights of death row convicts
ensuing from inordinate delay caused at the hands of executive in deciding
the mercy petitions filed under Article 72/161 of the Constitution. In all
the writ petitions, the petitioners prayed for a writ of declaration
declaring that the execution of the sentence of death, pursuant to the
letter No. F.No.14/1/1999-Judicial Cell dated 12.08.2011 issued by the
Union of India, is unconstitutional and thus sought for commutation of the
sentence of death to imprisonment for life.
2) Akin to this issue was decided by us in a recent judgment viz.,
Shatrughan Chauhan & Anr. vs. Union of India & Ors. [Writ Petition
(Criminal) No. 55 of 2013 etc.] decided on 21.01.2014 wherein this Court
held that execution of sentence of death on the accused notwithstanding the
existence of supervening circumstances, is in violation of Article 21 of
the Constitution. One of the supervening circumstances sanctioned by this
Court for commutation of death sentence into life imprisonment is the
undue, inordinate and unreasonable delay in execution of death sentence as
it attributes to torture. However, this Court, cogently clarified in its
verdict that the nature of delay i.e. whether it is undue or unreasonable
must be appreciated based on facts of individual cases and no exhaustive
guidelines can be framed in this regard.
The relevant portion of Shatrughan
Chauhan (supra), is as under:-
“42) Accordingly, if there is undue, unexplained and inordinate delay
in execution due to pendency of mercy petitions or the executive as
well as the constitutional authorities have failed to take note
of/consider the relevant aspects, this Court is well within its powers
under Article 32 to hear the grievance of the convict and commute the
death sentence into life imprisonment on this ground alone however,
only after satisfying that the delay was not caused at the instance of
the accused himself…”
*** *** ***
“54) … Therefore, in the light of the aforesaid elaborate discussion,
we are of the cogent view that undue, inordinate and unreasonable
delay in execution of death sentence does certainly attribute to
torture which indeed is in violation of Article 21 and thereby entails
as the ground for commutation of sentence. However, the nature of
delay i.e. whether it is undue or unreasonable must be appreciated
based on the facts of individual cases and no exhaustive guidelines
can be framed in this regard.”
3) Accordingly, the case at hand has to be decided under the guidance of
this judgment. The two principles stipulated in the judgment for
commutation of death sentence into life imprisonment on the ground of delay
as the supervening circumstance are firstly, that the delay occurred must
be inordinate and secondly, that the delay must not be caused at the
instance of the accused. Let us assess the facts of the given case in the
light of established principles in Shatrughan Chauhan (supra).
Factual Background:
4) In these petitions, we are concerned only with the rejection of the
mercy petitions of the petitioners by the President of India under Article
72 of the Constitution after the confirmation of death sentence by this
Court, thus there is no need to traverse the factual details leading up to
the imposition of death sentence.
5) Initially, the mercy petitions were filed before the Governor of
Tamil Nadu on 17.10.1999 and the Governor, on 27.10.1999, rejected the
same. Subsequently, the said rejection was challenged before the Madras
High Court in W.P. Nos. 17655-17658 of 1999 on the ground that the mercy
petitions were decided without consulting the Council of Ministers, which
is unsustainable in law. Accordingly, by order dated 25.11.1999, the
Madras High Court set aside the order of rejection of mercy petitions by
the Governor and directed to reconsider the mercy petitions afresh.
Thereafter, on 25.04.2000, the Governor again rejected the mercy petitions.
6) Consequently, the mercy petitions were forwarded to the President on
26.04.2000 for consideration under Article 72 of the Constitution. The
President, on 12.08.2011, rejected these mercy petitions after a delay of
more than 11 years. The rejection of the aforesaid petitions was
communicated to the petitioners on 25.08.2011. Subsequently, the said
rejection was also challenged in W.P. Nos. 20287-20289 of 2011 before the
Madras High Court on 29.08.2011. Later, by order dated 01.05.2012, in
Transfer Petition (Criminal) Nos. 383-385 of 2011 and 462-464 of 2011, this
Court transferred all the three writ petitions to this Court in the
interest of justice. Pursuant to the aforesaid order, the Madras High Court
transmitted the original records to this Court, which have been registered
as Transferred Case (Criminal) Nos. 1-3 of 2012. All the petitioners are
currently lodged in the Central Prison, Vellore, Tamil Nadu and they are in
incarceration since 1991, i.e., for more than two decades.
7) Heard Mr. Ram Jethmalani, learned senior counsel, Mr. Yug Mohit
Chaudhary, learned counsel for the petitioners and Mr. Goolam E. Vahanvati,
learned Attorney General and Mr. Sidharth Luthra, learned Additional
Solicitor General for the Union of India.
Contentions:
8) The only contention, as projected by Mr. Ram Jethmalani, learned
senior counsel and Mr. Yug Mohit Chaudhary, learned counsel for the
petitioners is that
in view of inordinate delay of more than 11 years in
disposal of mercy petitions, the sentence of death imposed upon the
petitioners herein is liable to be commuted to life imprisonment as it is
violative of Article 21 of the Constitution in addition to various
International Conventions, Universal Declarations, to which India is a
signatory. In support of their contention, they heavily relied on
Shatrughan Chauhan (supra).
9) On the other hand, Mr. Goolam E. Vahanvati, learned Attorney General,
assisted by Mr. Sidharth Luthra, learned Additional Solicitor General,
submitted that the delay caused was not at the instance of the head of the
executive and is not unreasonable. They further submitted that even if
there was inordinate delay in disposal of mercy petitions in the light of
the principles enunciated in Shatrughan Chauhan (supra) and also from the
information furnished by the petitioners in their affidavits filed before
the High Court praying for commutation, the petitioners have not made out a
case for passing similar order of commutation as ordered in Shatrughan
Chauhan (supra).
Points for Consideration:
10) Firstly, as mentioned earlier, the question
whether inordinate delay
in disposing of mercy petitions is a supervening circumstance for
commutation of sentence of death into life imprisonment is well settled in
view of the recent verdict in Shatrughan Chauhan (supra). As a result, the
task before this Court is confined only to finding out
whether the nature
of delay caused is reasonable or inordinate in the light of the
circumstances of the given case and to verify whether the delay was caused
at the instance of accused.
11) The second point for consideration before this Court is
whether in
Shatrughan Chauhan (supra), this Court, laid down for actually proving the
dehumanizing effect on the accused or mere unreasonable and inordinate
delay on face of it is sufficient for commutation of death sentence to
life.
Discussion:
12) After having carefully analyzed all the materials and rival
contentions, now let us venture to distinctively discuss on the aforesaid
issues. At the outset, let us examine whether the delay of 11 years in
disposing of mercy petitions is unreasonable and inordinate in the light of
the facts of the given case.
13) Following the rejection of mercy petitions of the petitioners herein
by the Governor on 25.04.2000, these petitions were forwarded to the
Ministry of Home Affairs, Government of India on 04.05.2000.
After an
unreasonable delay of 5 years and 1 month, on 21.06.2005, the Ministry of
Home Affairs submitted the petitioners’ mercy petitions to the President
for consideration.
Thereafter, on 23.02.2011, the Ministry of Home Affairs
recalled the petitioners’ mercy petitions from the office of the President.
Here also, there was a delay of 5 years and 8 months.
Ultimately, the
President, on 12.08.2011, rejected these mercy petitions after a delay of
more than 11 years.
14) Across the bar, learned Attorney General, while explaining the delay
ensued i.e., 5 years and 1 month submitted that shortly after the receipt
of the mercy petitions in 2000, a note was prepared but thereafter the file
was lying in the drawer of some officer of the Ministry of Home Affairs,
and, hence, could not be processed. As regards delay of 5 years and 8
months, learned Attorney General fairly admitted that this delay couldn’t
be explained in any way.
15) It is, therefore, indisputable that the delay ensued in the given
petitions is inordinate and unreasonable and the same was not caused at the
instance of the petitioners. Accordingly, the unreasonable delay caused
qualifies as the supervening circumstance, which warrants for commutation
of sentence of death into life imprisonment as stipulated in Shatrughan
Chauhan (supra), inter alia, the judicial decisions in Triveniben vs. State
of Gujarat (1988) 4 SCC 574, Sher Singh and Ors. vs. State of Punjab (1983)
2 SCC 344 and T.V. Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC 68.
16) Exorbitant delay in disposal of mercy petition renders the process of
execution of death sentence arbitrary, whimsical and capricious and,
therefore, inexecutable.
Furthermore, such imprisonment, occasioned by
inordinate delay in disposal of mercy petitions, is beyond the sentence
accorded by the court and to that extent is extra-legal and excessive.
Therefore, the apex constitutional authorities must exercise the power
under Article 72/161 within the bounds of constitutional discipline and
should dispose of the mercy petitions filed before them in an expeditious
manner.
17) As regards the second contention, it was argued by learned Attorney
General that the test laid down by this Court in cases involving delayed
mercy petitions requires the petitioners to actively demonstrate the
sufferings occasioned by the delay, and that in the present case, the
petitioners have been having a good time in prison and they have not
suffered at all. Hence, it is argued that the petitioners are not entitled
to relief.
18) Before we advert to respond the aforesaid contention, it is relevant
to comprehend the primary ground on the basis of which the relief was
granted in cases of delayed disposal of the mercy petition and that is,
such delay violates the requirement of a fair, just and reasonable
procedure.
Regardless and independent of the suffering it causes, delay
makes the process of execution of death sentence unfair, unreasonable,
arbitrary and capricious and thereby, violates procedural due process
guaranteed under Article 21 of the Constitution and the dehumanizing effect
is presumed in such cases.
It is in this context, this Court, in past, has
recognized that incarceration, in addition to the reasonable time necessary
for adjudication of mercy petitions and preparation for execution, flouts
the due process guaranteed to the convict under Article 21 which inheres in
every prisoner till his last breath.
19) This Court has consistently held that prolonged delay in execution of
death sentence, by itself, gives rise to mental suffering and agony which
renders the subsequent execution of death sentence inhuman and barbaric.
In Shatrughan Chauhan (supra), this Court held as under:
“33) This is not the first time when the question of such a nature is
raised before this Court. In Ediga Anamma vs. State of A.P., 1974(4)
SCC 443 Krishna Iyer, J. spoke of the “brooding horror of haunting the
prisoner in the condemned cell for years”. Chinnappa Reddy, J. in
Vatheeswaran (supra) said that prolonged delay in execution of a
sentence of death had a dehumanizing effect and this had the
constitutional implication of depriving a person of his life in an
unjust, unfair and unreasonable way so as to offend the fundamental
right under Article 21 of the Constitution. Chinnappa Reddy, J.
quoted the Privy Council’s observation in a case of such an inordinate
delay in execution, viz., “The anguish of alternating hope and despair
the agony of uncertainty and the consequences of such suffering on the
mental, emotional and physical integrity and health of the individual
has to be seen.” …”
*** *** ***
“39) Keeping a convict in suspense while consideration of his mercy
petition by the President for many years is certainly an agony for
him/her. It creates adverse physical conditions and psychological
stresses on the convict under sentence of death. Indisputably, this
Court, while considering the rejection of the clemency petition by the
President, under Article 32 read with Article 21 of the Constitution,
cannot excuse the agonizing delay caused to the convict only on the
basis of the gravity of the crime.”
*** *** ***
“43) The procedure prescribed by law, which deprives a person of his
life and liberty must be just, fair and reasonable and such procedure
mandates humane conditions of detention preventive or punitive. In
this line, although the petitioners were sentenced to death based on
the procedure established by law, the inexplicable delay on account of
executive is unexcusable. Since it is well established that Article 21
of the Constitution does not end with the pronouncement of sentence
but extends to the stage of execution of that sentence, as already
asserted, prolonged delay in execution of sentence of death has a
dehumanizing effect on the accused. Delay caused by circumstances
beyond the prisoners’ control mandates commutation of death sentence.
In fact, in Vatheeswaran (supra), particularly, in para 10, it was
elaborated where amongst other authorities, the minority view of Lords
Scarman and Brightman in the 1972 Privy Council case of Noel Noel
Riley vs. Attorney General, (1982) Crl. Law Review 679 by quoting
“sentence of death is one thing, sentence of death followed by lengthy
imprisonment prior to execution is another”.”
20) Thus, the argument that the petitioners are under a legal obligation
to produce evidence of their sufferings and harm caused to them on account
of prolonged delay is unknown to law and will be misinterpretation of
Shatrughan Chauhan (supra).
Such a prerequisite would render the
fundamental rights guaranteed under Part III of the Constitution beyond the
reach of death-row convicts and will make them nugatory and inaccessible
for all intent and purposes. Besides, there is no requirement in Indian law
as well as in international judgments for a death-row convict to prove
actual harm occasioned by the delay. There is no obligation on the convict
to demonstrate specific ill effects of suffering and agony on his mind and
body as a prerequisite for commutation of sentence of death.
21) In any case, the petitioners have extensively pleaded the nature of
their sufferings both in the petitions as well as in the reminder letters
which each of them repeatedly have sent to the President which remained
unheeded. As regards the argument of learned Attorney General, viz., the
petitioners were enjoying themselves in prison, a perusal of specific
averments in their writ petitions filed before the High Court shows a
different picture. All the petitioners highlighted that the delay caused
unendurable torture to them and they repeatedly requested the authorities
to forthwith decide their mercy petitions.
22) In Transferred Case (Crl.) No. 1 of 2012 (V. Sriharan @ Murugan), in
Writ Petition No. 20287 of 2011 filed before the High Court, in para 5, the
petitioner has expressed his grievance in the following manner:
“I state that the extraordinary and unjustified delay in deciding my
mercy petition is entirely caused by the office of the Hon’ble
President of India. For each day after the sentence of death was
confirmed by the Hon’ble Supreme Court, and while my mercy petition
was pending before the Hon’ble President of India, my family and I
have undergone a living hell not knowing whether I would live or die,
and whether I would live to see another day or draw another breath, or
whether that day and that breath would be my last. I state that I
have been swinging between life and death for these past many years
confined in a single cell. I state that I have suffered enough and
that it would not be in the interests of justice to compound this
suffering by executing me. I submit that the interests of justice
would be served by converting the sentence of death to one of life
imprisonment. I state that cases where the delay has been less than
half of what it is in the present case have been held by the Hon’ble
Supreme Court and this Hon’ble Court to be unconscionable and
excessive and in breach of Article 21, warranting substitution of
death sentence by a sentence of life.”
In paragraph 22, the petitioner has stated as under:
“I state that I have been in custody since 4.6.1991, i.e. for more
than 20 years. I have been under sentence of death since the
judgment of the trial court on 28.1.1998, i.e. for more than 13
years and 7 months. I further state that after the rejection of my
review petition by the Supreme Court on 8.10.1999, i.e. for a period
of about 11 years and 10 months, I have lived under the shadow of
the hangman’s noose. During this period, I have been kept in a
single cell, with the threat of imminent death hanging over my head.
My mercy petition was filed more than 11 years and 4 months ago
(about 4100 days). During this long period, I have suffered
excruciating mental agony and torture of a kind that is difficult to
imagine or conceptualize. I have been swinging between life and
death, believing every waking minute to be my last, not knowing
whether I will be spared or not, and when the hangman’s noose will
close around my neck. Every person passing my prison cell is
imagined to be the harbinger of news regarding the outcome of the
mercy petition, or the date of my execution. Such torment is a
punishment far worse than death.”
23) In the year 2005, the petitioner-Sriharan @ Murugan sent a
representation to the President of India reminding the pendency of his
mercy petition. In that letter, apart from highlighting his pathetic
position, he asserted that “it has been 5 years since I had sent my
petition requesting Justice. I live like a moving dead body with the rope
tangling in front of my eyes always in solitary confinement. I request
justice but not mercy.”
24) In another letter dated 17.06.2006, addressed to the President, he
asserted to the sufferings of his family members in the following words:
“For about 8 years, I have been serving sentence as death sentence
convict. So, the sufferings of my parents, brothers, wife and
daughter can not be described in words. I ask God daily why they
should suffer due to me. No body knows how many times the convicts
who are sentenced to death like me die and how many times they dream
about their being hanged and no body knows about this truth. No one
who loves consciousness, humanity and truth do not fear death. But
with the aim of making sacrificial goat, after being sentenced to
death, and justice is not done for years together and being harassed
and under the circumstances, there is every change for a man to
disintegrate. When one’s life is unreasonably wasted, no human being
can lead life without fear or suffering. This confusion and fear is
very bad misery. I have been suffering this for many years. I
request you to grant reduction of punishment and render justice at the
earliest.”
In the subsequent letter dated 10.03.2007, addressed to the President of
India, the petitioner has stated:
“Sir, 16 years have passed since I and my wife were imprisoned. The
female child born to us in jail is suffering without security and
education as a nomad. During this long time, the suffering undergone
and undergoing now by our family members can not be said in words.
Thinking of punishing me have punished my entire family. So, my life
in jail has become a living death.”
In the same way, he also made several subsequent letters to the President
highlighting his pathetic position, torture, sufferings of his family, etc.
25) In Transferred Case (Crl.) No. 2 of 2012 (T. Suthendraja @ Santhan)
in Writ Petition No. 20288 of 2011 filed before the High Court and
Transferred Case (Crl.) No. 3 of 2012 (A.G. Perarivalan @ Arivu) in Writ
Petition No. 20289 of 2011 filed before the High Court, both the
petitioners/death convicts have expressed their grievance in similar terms
like the co-convict Murugan. These petitioners also sent similar letters
to the President highlighting their agony in the prison and prayed for
earlier disposal of their mercy petitions. They also highlighted
sufferings on account of solitary confinement, mental agony, etc.
26) Having perused all the averments specifically averred in the writ
petitions as well as the copies of the communication addressed to the
Ministry of Home Affairs and to the President of India and also in view of
other information/materials available in the affidavit filed before the
High Court in the year 2011, we are unable to accept the views expressed by
learned Attorney General on this point.
Conclusion:
27) At the outset, we once again clarify that the relief sought for under
these kind of petitions is not per se review of the order passed under
Article 72/161 of the Constitution on merits but on the ground of violation
of fundamental rights guaranteed under the Constitution to all the citizens
including the death row convicts.
28) The clemency procedure under Article 72/161 provides a ray of hope to
the condemned prisoners and his family members for commutation of death
sentence into life imprisonment and, therefore, the executive should step
up and exercise its time-honored tradition of clemency power guaranteed in
the Constitution one-way or the other within a reasonable time. Profuse
deliberation on the nature of power under Article 72/161 has already been
said in Shatrughan Chauhan (supra) and we embrace the same in the given
case as well.
29) We are confident that the mercy petitions filed under Article 72/161
can be disposed of at a much faster pace than what is adopted now, if the
due procedure prescribed by law is followed in verbatim. The fact that no
time limit is prescribed to the President/Governor for disposal of the
mercy petition should compel the government to work in a more systematized
manner to repose the confidence of the people in the institution of
democracy. Besides, it is definitely not a pleasure for this Court to
interfere in the constitutional power vested under Article 72/161 of the
Constitution and, therefore, we implore upon the government to render its
advice to the President within a reasonable time so that the President is
in a position to arrive at a decision at the earliest.
30) Before we conclude, we would also like to stress on one more aspect.
We have learnt that the Union Government, considering the nature of the
power under Article 72/161, set out certain criteria in the form of
circular for deciding the mercy petitions. We hereby recommend that in view
of the recent jurisprudential development with regard to delay in
execution, another criteria may be added to the existing yardsticks so as
to require consideration of the delay that may have occurred in disposal of
a mercy petition.
31) In the light of the above discussion and observations, in the cases
of V. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @
Arivu, we commute their death sentence into imprisonment for life. Life
imprisonment means end of one’s life, subject to any remission granted by
the appropriate Government under Section 432 of the Code of Criminal
Procedure, 1973 which, in turn, is subject to the procedural checks
mentioned in the said provision and further substantive check in Section
433-A of the Code. All the writ petitions are allowed on the above terms
and the transferred cases are, accordingly, disposed of.
……….…………………………CJI.
(P. SATHASIVAM)
……….……………………………J.
(RANJAN GOGOI)
..….….……………………………J.
(SHIVA KIRTI SINGH)
NEW DELHI;
FEBRUARY 18, 2014.
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