Criminal Appeal No 75 of 1983
Appeal by Special leave from the Judgment and order dated the 20th December 1976 of
the Madras High Court in Criminal Appeal No 182 of 1975 and Referred Trial No 11 of 1975
RK Garg and R Satish for the AppellantPetitioner
AV Rangam for the Respondent
The order of the Court was delivered by 350 CHINNAPPA REDDY J A prisoner condemned to death over eight years ago claims that it is not lawful to hang him now
Let us put the worst against him first
He was the principal accused in the case and so to say the arch villian of a villainous piece
He was the brain behind a cruel conspiracy to impersonate Customs officers  pretend to question unsuspecting visitors to the city of Madras abduct them on the pretext of interrogating them administer sleeping pills to the unsuspecting victims steal their cash and jewels and finally murder them
The plan was ingeniously fiendish and the appellant was the architect
There is no question that the learned Sessions Judge very rightly sentenced him to death But that was in January 1975
Since then he has been kept in solitary confinement quite contrary to our ruling in Sunil Batra vs Delhi Administra tion1
Before that he was a prisoner under remand  for two years
So the prisoner claims that to take away his life after keeping him in jail for ten years eight of which in illegal solitary confinement is a gross violation o the Fundamental Right guaranteed by article 21 af the Constitution
Let us examine his claim
First let us get rid of the cobwebs of prejudice Sure the murders were wicked and diabolic
The appellant and his friends showed no mercy to their victims
Why should any mercy be shown to them But gently we must remind ourselves it is not Shylock s pound of flesh that are seek nor a chilling of the human spirit
It is justice to the killer too and not justice untempered by mercy that we dispense
Of course we cannot refuse to pass the sentence of death where the circumstances cry for it
But the question is whether in a case where after the sentence of death is given the accused person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to suffer the most excruciating agony and anguish is it not open to a court of appeal or a court exercising writ jurisdiction in an appropriate proceeding to take note of the circumstance when it is brought to its notice and give relief where necessary Before adverting to the constitutional implications of prolong ed delay in the execution of a sentence of death let us refer to the judicial attitude towards such delay in India and elsewhere
In Piaradusadh vs Emperor2 the Federal Court of India took into consideration the circumstance that the appellant had been 351 awaiting the execution of the death sentence for over a year to alter the sentence to one of transportation for life
In Ediga Annamma vs State af Andhra Pradeshl Krishna Iyer and Sarkaria JJ observed that the brooding horror of hanging  which has been haunting the prisoner in her condemned cell for over two years had an ameliorative impact and was a factor of humane significance in the sentencing context
In State of UP vs Lalla Singh2 Gupta and Kailasam JJ were dealing with a case of gruesome murder of three persons the head of one of whom was severed
The learned judges while of the view that the Sessions Judge was perfectly in order in imposing the sentence of death thought that as the offences had been committed More than six years ago the ends of justice did not require the sentence of death to be confirmed
In Bhagwan Baux Singh vs State of UP3 the sentence of death was commuted to imprisonment for life by Murtaza Fazal Ali and Kailasam JJ having particular regard to the fact that the sentence of death had been imposed more than two and a half years ago
In Sadhu Singh vs State of UP4 Sarkaria Sen JJ and one of us Chinnappa Reddy JJ took into account the circumstance that the appellant was under spectre of the sentence of death for over three years and seven months to alter the sentence of death to one of imprisonment for life
In State of UP vs Sahai5 Murtaza Fazal Ali Baharul Islam and Varadarajan JJ while holding that the murders were extremely gruesome brutal and dastardly  nonetheless declined to pass the sentence of death on the ground that more than eight years had elapsed since the occurrence
In Furman vs State of Georgia6 Justice Brennan observed The prospect of pending execution exacts a frightful toll during the 352 inevitable long wait between the imposition of sentence and the actual infliction of death
In Noel Riley and Ors
vs The Attorney General and Another1 the majority of the Lords of the Judicial Committee of the Privy Council expressed no opinion on the question whether the delayed execution of a sentence of death by hanging could be described as inhuman or degrading punishment
But Lord Scarman and Lord Brightman who gave the minority opinion after referring
to the British practice and Furman vs State of Georgia People vs Chessman People vs Anderson Ediga Anamma vs State of Andhra Pradesh Rajendra Prasad vs State of UP and Tyrer vs United Kingdom said It is no exaggeration therefore to say that the jurisprudence of the civilised world much of which is derived from common law principles and the prohibition against cruel and unusual punishment in the English Bill of Rights has recognised and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading
As the Supreme Court of California commented in Anderson s case supra it is cruel and has dehumanising effects
Sentence of death is one thing sentence of death followed by lengthy imprisonment prior to execution is another
It is of course true that a period of anguish and suffering is an inevitable consequence of sentence of death
But a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not
And it is no answer to say that the man will struggle to stay alive
In truth it is this ineradicable human desire which makes prolongation inhuman and degrading
The anguish of alternating hope and despair the agony of uncertainty the consequences of such suffering on the mental emotional and physical integrity and health of the individual are vividly described in the evidence of the effect of the delay in the circumstances of these five cases
We need not rehearse the facts which are not in dispute
We do not doubt that the appellants have proved that they have been subjected to a cruel and dehumanising experience         353 Prolonged delay when it arises from factors outside the control of the condemned man can render a decision to carry out the sentence of death an inhuman and degrading punishment
It is of course for the applicant for constitutional protection to show that the delay was inordinate arose from no act of his and was likely to cause such acute suffering that the infliction of the death penalty would be in the circumstances which had arisen inhuman or degrading
Such a case has been established in our view by these appellants
 While we entirely agree with Lord Scarman and Lord Brightman about the dehumanising effect of prolonged delay after the sentence of death we enter a little caveat but only that we may go further
We think that the cause of the delay is immaterial when the sentence is death
Be the cause for the delay the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible it would not alter the dehumanising character of the delay
What are the constitutional implications of the dehumanising factor of prolonged delay in the execution of a sentence of death Let us turn at once to article 21 of the Constitution for it is to that article that we must first look for protection whenever life or liberty is threatened
article 21 says No person shall be deprived of his life or personal liberty except according to procedure established by law The dimensions of article 21 which at one time appeared to be constricted by AR Gopalan vs State of Madras1 have been truly expanded by Maneka Gandhi vs Union of India2 and Sunil Batra etc
vs Delhi Administration3 In Maneka Gandhi vs Union of India2 it was held that the various articles of the Constitution in Chapter III Fundamental Rights were not several isolated walled fortresses each not reacting on the other but on the other hand were parts of a great scheme to secure certain basic rights to the citizens of the country each article designed to expand but never to curtail the content of the right secured by the other article
No article was a complete code in 354 itself and several of the Fundamental Rights guaranteed by Chapter Ill of the Constitution overlapped each other
So a law satisfying the requirements of article 21 would still have to meet the challenge of article 14 and article 19 of the Constitution
In regard to article 21 itself it was held that the procedure contemplated by the article had to be fair just and reasonable and not some semblance of procedure fanciful oppressive or arbitrary
Chandrachud
J as he then was said But the mere prescription of some kind of procedure cannot ever meet the mandate of article 21
The procedure prescribed by law has to be fair just and reasonable not fanciful oppressive or arbitrary
 Chandrachud J expressed his total agreement with Bhagawati J s following observations The law must therefore now be taken to be well settled that article 21 does not exclude article 19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty  and there is consequently no infringement of the fundamental right conferred by article 21 such law in so far as it abridges or takes away any fundamental right under article 19 would have to meet the challenge of that article  Bhagwati J further observed But apart altogether from these observations in AK Gopalan s case which have great weight we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by article 21 having regard to the impact of article 14 on article 21
 Again he said The principle of reasonableness which legally as well as philosophically is an essential element of equality or non arbitrariness pervades article 14 like a brooding omnipresence and the procedure contemplated by article 21 must answer the test of reasonableness in order to be in conformity with article 14
It must be right and just and fair and pot arbitrary fanciful or oppressive otherwise it would be 355 no procedure at all and the requirement of article 21 would A not be satisfied
 In Sunil Batra vs Delhi Administration1 Krishna Iyer J while dealing with the question whether solitary confinement could be indicted on a person awaiting death sentence observed B True our Constitution has no due process  clause or the VIII Amendment but in this branch of law after Cooper and Maneka Gandhi the consequence is the same
For what is punitively outrageous scandalizingly unusual or cruel and rehabilitatively counter productive is unarguably unreasonable and arbitrary and is shot down by  articles 14 and 19 and if inflicted with procedural unfairness falls foul of article 21
Part III of the Constitution does not part company with the prisoner at the gates and judicial oversight protects the prisoner s shrunken fundamental rights if flouted frowned upon or frozen by the prison D authority
Is a person under death sentence or under trial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears Emphatically no lest social justice dignity of the individual equality before the law procedure established by law and the seven lamps of freedom article 19 become chimerical constitutional claptrap
 In the same case Desai J said The word law in the expression procedure established by law in article 21 has been interpreted to mean in Maneka Gandhi s case supra that the law must be right just and fair and not arbitrary fanciful or oppressive
otherwise it would be no procedure at all and the requirement of article 21 would not be satisfied
If it is arbitrary it would be violative of article 14
 In Bachun Singh vs State of Punjab2 Sarkaria J summarised the effect of Maneka Gandhi in these words 356 In Maneka Gandhi s case which was a decision by a Bench of seven learned Judges it was held by Bhagwati J his concurring judgment that the expression personal liberty  in article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights under article 19
It was further observed that articles 14 19 and 21 are not to be interpreted in water tight compartments and consequently a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of article 21 has to stand the test of one or more of the fundamental rights conferred under article 19 which may be applicable in a given situation ex hypothesi it must also be liable to be tested with reference to article 14
The principle of reasonableness pervades all the three articles with the result that the procedure contemplated by article 21 must be right and just and fair  and not arbitrary fanciful or oppressive  otherwise it should be no procedure at all and the requirement of article 21 would not be satisfied
The learned judge then referred to article 21 and said If this article is expanded in accordance with the interpretative principle indicated in Maneka Gandhi it will read as follows No person shall be deprived of his life or personal liberty except according to fair just and reasonable procedure established by valid law
In the converse positive form the expanded Article will read as below A person may be deprived of his life or personal liberty in accordance with fair just and reasonable procedure established by valid law Thus expanded and read for interpretative purposes article 21 clearly brings out the implication that the Founding Fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair just and reasonable procedure established by valid law
357 The question whether a prisoner under a lawful sentence of A 
death or imprisonment could claim Fundamental Rights was considered in Bhuvan Mohan Patnaik vs State of APl
Chandrachud J as he then was declared Convicts are not by mere reason of the conviction
denuded of all the Fundamental Rights which they other wise possess
A compulsion under the authority of law following upon a conviction to live in a prison house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to practise a profession
A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence
But the Constitution guarantees other freedoms like the right to acquire hold and dispose of property for the exercise of which incarceration can be no impediment
Likewise even convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law
The declaration of Chadrachud I in Bhuvan Mohan Patniak s case was quoted with approval and accepted by the Constitution Bench in Sunil Batra vs Administration supra
We may also refer here to State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Anr 2 where a Constitution Bench repelled the argument that the Bombay Conditions of Detention order 1951 conferred privileges but not rights on the detenu with the p observation If this argument were to be accepted it would mean that the detenu could be starved to death if there was no condition providing for giving food to the detenu
The Court has also recognised that the right to life and liberty guaranteed by article 21 of the Constitution includes the right to a speedy trial
The right to a speedy trial may not be an expressly guaranteed constitutional right in India but it is implicit in the 358 right to a fair trial which has been held to be part of the right to life and liberty guaranteed by Art21 of the Constitution
After referring to situations where an accused person may be seriously jeopardised in the conduct of his defence with the passage of time it was observed by one of us in State of Maharashtra vs Champalall Such situations in appropriate cases we may readily infer an infringement of the right to life and liberty guaranteed by article 21 of the Constitution
Denial of a speedy trial may with or without proof of something more lead to an inevitable inference of prejudice and denial of justice
It is prejudice to a man to be detained without trial
It is prejudice to a man to be denied a fair trial
A fair trial implies a speedy trial Earlier in Hussainara Khatoon I vs Home Secretary2 it was observed by Bhagwati
J If a person is deprived of his liberty under a procedure which is not reasonable fair or just such deprivation would be violative of his fundamental right under article 21 and he would be entitled to enforce such fundamental right and secure his release
Now obviously procedure prescribed by law for depriving a person of his liberty cannot be reasonable fair or just  unless that procedure ensures a speedy trial for determination of the guilt of such person
No procedure which does not ensure a reasonably quick trial can be regarded as reasonable fair or just  and it would fall foul of article 21
There can therefore be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in article 21
 In Hussainara Khatoon IV vs Home Secretary3 the principle was re affirmed and Bhagwati J added Speedy trial is as held by us in our earlier judgment dated February 26 1979 an essential ingredient of reason 359 able fair and just  procedure guaranteed by article 21 and it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial to the accused In the same case it was further observed that the right to free legal services was implicit in article 21 as no procedure could be said to be reasonable fair and just which did not provide for legal service to those who could not secure them themselves
That free legal services to the poor and the needy was an essential element of any reasonable fair and just procedure had already been decided in MH Hoskot vs State of Maharashtral
So what do we have now articles 14 19 and 21 are not mutually exclusive
They sustain strengthen and nourish each other
They are available to prisoners as well as free men
Prison walls do not keep out Fundamental Rights
A person under sentence of death may also claim Fundamental Rights
The fiat of article 21 as explained is that any procedure which deprives a person of his life or liberty must be just fair and reasonable
Just fair and reasonable procedure implies a right to free legal services where he cannot avail them
It implies a right to a speedy trial
It implies humane conditions of detection preventive or punitive Procedure established by law  does not end with the pronouncement of sentence it includes tho carrying out of sentence
That is as far as we have gone so far
It seems to us but a short step but a step in the right direction to hold that prolonged detention to await the execution of a sentence of death is an unjust unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death
In the United States of America where the right to a speedy trial is a constitutionally guaranteed right the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment or the vacation of the sentence vide Strunk vs United States2
Analogy of American Law is not permissible but interpreting our Constitution sui generis as we are bound to do 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 depriving a person of his life in an unjust unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except 360 according to procedure established by law
The appropriate relief in such a case ii tn vacate the sentence of death
What may be considered prolonged delay so as to attract the constitutional protection of article 21 against the execution of a sentence of death is a ticklish question
In Ediga Annamma s case two years was considered sufficient to justify interference with the sentence of death
In Bhagwan Baux s case two and a half years and in Sadhu Singh s case three and a half years were taken as sufficient to justify altering the sentence of death into one of imprisonment for life
The Code of Criminal Procedure provides that a sentence of death imposed by a court of Session must be confirmed by the High Court
The practice to our knowledge has always been to give top priority to the hearing of such cases by the High Courts
So also in this Court
There are provisions in the Constitution articles 72 and 161 which invest the President and the Governor with power to suspend remit or commute a sentence of death
Making all reasonable allowance for the time necessary for appeal and considered 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 article 21 and demand the quashing of the sentence of death
We therefore accept the special leave petition allow the appeal as also the Writ Petition and quash the sentence of death
In the place of the sentence of death we substitute the sentence of imprisonment for life
HLC Appeal allowed


Summary:
The appellant was sentenced to death in January 1975 on a charge of committing wicked and diabolic murders and since then he was in solitary confinement
Before conviction
he had been a prisoner under remand  for two years
The appellant s contention was that to take away his life after keeping him in jail for ten years eight of which in illegal solitary confinement would be violative of article 21
Allowing the appeal and converting the sentence of death to one of imprisonment for life  HELD The dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust unfair and unreasonable way so as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according
to procedure established by law
Making all reasonable allowance for the time necessary
for appeal and consideration of reprieve a delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke article 21 and demand the quashing of the sentence of death
359 G H 360 D E i A convict is entitled to the precious right guaranteed in article 21
The right to a speedy trill is implicit in the right to a fair trial which has been held to be part of the right to life and liberty guaranteed by this Article
357 D 357 G H 358 A Bhuvan Mohan Patnaik vs State of AP 1975 2 SCR 24 Sunil Batra vs Delhi Administration 1979 1 SCR 392 State of Maharashtra vs Prabhakar Pandurang Sanpzgiri  Anr   State of Maharashtra vs Champalal AlR  Hussainara Khatoon I vs Home Secretary  and Hussainara Khatoon IV vs Home Secretary  referred to
349 ii Tho Sat of article 21 is that any procedure which deprives a person of his life or liberty must be just fair and reasonable
It implies humane conditions of detention preventive or punitive Procedure established by law  does not end with the pronouncement of sentence it includes the carrying out of sentence
Prolonged detention to await the execution of a sentence of death is an unjust unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death 359 D E 359 G H 360 A Maneka Gandhi vs Union of India 1978 2 SCR 621 Sunil Batra vs Delhi Administration  and Bachan Singh vs State of Punjab AIR referred to
iii Sentence of death is one thing sentence of death followed by lengthy imprisonment prior to execution is another
A period of anguish and suffering is an inevitable consequence of sentence of death but a prolongation of it beyond the time necessary for appeal and consideration of retrieve is not
And it is no answer to say that the man will struggle to stay alive
In truth it is this ineradicable human desire which makes prolongation inhuman and degrading with its 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
Where after the sentence of death is given the accused is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to super the most excruciating agony and anguish it is open to a court of appeal or a court exercising writ jurisdiction in an appropriate proceeding to take note Of the circumstance when it is brought to its notice and give relief where necessary
352 E G E Noel Riley  Ors
vs The Attorney General  Anr 1982 Crl
Law Review 679 Piaradusadh Y Emperor AIR  Ediga Annamma vs State of Andhra Pradesh   State of UP vs Lalla Singh AIR  Bhagwan Baux Singh vs State of UP AI R  Sadhu Singh vs State of UP AIR  State of UP vs Sahai AIR and Furman vs State of Georgia   referred to