IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
TRANSFERRED CASE (CRIMINAL) NO. 1 OF 2012
V. Sriharan @ Murugan …. Petitioner (s)
Versus
Union of India & Ors. …. Respondent(s)
WITH
TRANSFERRED CASE (CRIMINAL) NO. 2 OF 2012
T. Suthendraraja @ Santhan …. Petitioner (s)
Versus
Union of India & Ors. …. Respondent(s)
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.