ivil Appeal No 3 18788 of 1988
From the Judgment and Order dated 441983 of the Madhya Pradesh High Court in CR No 26 of 1988
AND VICE VERSA WITH SLP CIVIL No 13080 of 1988
K Parasaran Attorney General FS Nariman Anil B Divan BR Zaiwala Gopal Subramaniam VP Sarthi JB Dadachanji Vijay Gupta Ms Anjali K Verma Sumeet Kachwa ha Ashok Sagar DN Misra SC Sharma OC Mathur A Subhashini SK Gambhir D S Shastri and Arun Madan for the appearing parties
Vibhuri Jha Anil K Nauriya Ms Aruna Mathur A Mariarputham and CL Sahu for the Interveners
732 The following Order of the Court was delivered ORDER Having given our careful consideration for these several days to the facts and circumstances of the case placed before us by the parties in these proceedings including the pleadings of the parties the mass of data placed before us the material relating to the proceedings in the Courts in the United States of America the offers and counter offers made between the parties at different stages during the various proceedings as well as the complex issues of law and fact raised before us and the submissions made thereon and in particular the enormity of human suffering occasioned by the Bhopal Gas disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster we are of opinion that the case is pre eminently fit for an overall settlement between the parties covering all litigations claims rights and liabilities related to and arising out of the disaster and we hold it just equita ble and reasonable to pass the following order We order 1 The Union Carbide Corporation shall pay a sum of US Dollars 470 millions Four hundred and seventy Millions to the Union of India in full settlement of all claims rights and liabilities related to and arising out of the Bhopal Gas disaster
2 The aforesaid sum shall be paid by the Union Carbide Corporation to the Union of India on or before 31 March 1989
3 To enable the effectuation of the settlement all civil proceedings related to and arising out of the Bhopal Gas disaster shall hereby stand transferred to this Court and shall stand concluded in terms of the settlement and all criminal proceedings related to and arising out of the disaster shall stand quashed wherever these may be pending
A memorandum of settlement shall be filed before us tomorrow setting forth all the details of the settlement to enable consequential directions if any to issue
We may record that we are deeply indebted to learned counsel for the parties for the dedicated assistance and the sincere cooperation 733 they have offered the Court during the hearing of the case and for the manifest reasonableness they have shown in accepting the terms of settlement suggested by this Court
Having heard learned counsel for the parties and having taken into account the written memorandum filed by them we make the following order further to our order dated 14 February 1989 which shall be read with and subject to this order 1
Union Carbide India Ltd which is already a party in numerous suits filed in the District Court at Bhopal and which have been stayed by an order dated 31 December 1985 of the District Court Bhopal is joined as a necessary party in order to effectuate the terms and conditions of our order dated 14 February 1989 as supplemented by this order
Pursuant to the order passed on 14 Febru ary 1989 the payment of the sum of US  470 Millions four Hundred and Seventy millions directed by the Court to be paid on or before 31 March 1989 will be made in the manner following a A sum of US  425 Millions four Hundred and Twenty five Millions shall be paid on or before 23 March 1989 by Union Carbide Corporation to the Union of India less US  5 Millions already paid by the Union Carbide Corporation pursuant to the order dated 7 June 1985 of Judge Keenan in the court proceedings taken in the United States of America
b Union Carbide India Ltd will pay on or before 23 March 1989 to the Union of India the rupee equivalent of US  45 Millions forty five Millions at the exchange rate prevailing at the date of payment
c The aforesaid payments shall be made to the Union of India as claimant and for the benefit of all victims of the Bhopal Gas Disaster under the Bhopal Gas Leak Disaster Registration and Processing of Claims Scheme 1985 and not as fines penalties or punitive damages
Upon full payment of the sum referred to in paragraph 2 above 734 a The Union of India and the State of Madhya Pradesh shall take all steps which may in future become necessary in order to imple ment and give effect to this order including but not limited to ensuring that any suits claims or civil or criminal complaints which may be filed in future against any Corpora tion Company or person referred to in this settlement are defended by them and disposal of in terms of this order
b Any such suits claims or civil or criminal proceedings filed or to be filed before any court or authority are hereby enjoined and shall not be proceeded with before such court or authority except for dismissal or quashing in terms of this order
Upon full payment in accordance with the Court s direc tions a The undertaking given by Union Carbide Corporation pursuant to the order dated 30 November 1986 in the District Court Bhopal shall stand discharged and all order passed in Suit No 1113 of 1986 andor in revision therefrom shall also stand discharged
b Any action for contempt initiated against counsel or parties relating to this case and arising out of proceedings in the courts below shall be treated as dropped
The amounts payable to the Union of India under these orders of the Court shall be deposited to the credit of the Registrar of this Court in a Bank under directions to be taken from this Court
This order will be sufficient authority for the Registrar of the Supreme Court to have the amount transferred to his credit which is lying unutilized with the Indian Red Cross Society pursuant to the direction from the International Red Cross Society
The terms of settlement filed by learned counsel for the parties today are taken on record and shall form part of our order and the record
The case will be posted for reporting compliance on the first Tuesday of April 1989
735 TERMS OF SETTLEMENT CONSEQUENTIAL TO THE DIRECTIONS AND ORDERS PASSED BY THIS HON BLE COURT 1
The parties acknowledge that the order dated February 14 1989 as supplemented by the order dated February 15 1989 disposes of in its entirety all proceedings in Suit No 1113 of 1986
This settlement shall finally dispose
of all past present and future claims causes of action and civil and criminal proceedings of any nature whatsoever wherever pending by all Indian citizens and all public and private entities with respect to all past present and future deaths personal injuries health effects compensation losses damages and civil and criminal complaints of any nature whatsoever against UCC Union Carbide India Limited Union Carbide Eastern and all of their subsidiaries and affiliates as well as each of their present and former directors officers employees agents representatives attorneys advocates and solicitors arising out of relating to or connected with the Bhopal gas leak disaster including past present and future claims causes of action and pro ceedings against each other
All such claims and causes of action whether within or outside India of Indian citizens public or private entities are hereby extinguished includ ing without limitation each of the claims filed or to be filed under the Bhopal Gas Leak Disaster Registration and Processing of Claims Scheme 1985 and all such civil pro ceedings in India are hereby transferred to this court and are dismissed with prejudice and all such criminal proceed ings including contempt proceedings stand quashed and ac cused deemed to be acquitted
Upon full payment in accordance with the Court s directions the undertaking given by UCC pursuant to the order dated November 30 1986 in the District Court Bhopal stands discharged and all orders passed in Suit No 1113 of 1986 and or in any Revision therefrom also stand dis charged
Sd JB Dadachanji Sd A Subhashini 1521989 for UCC and UCIL Ltd Advocate on Record for 152
1989 Union of India


Summary:
The accused were convicted under section 302 IPC and sentenced to death by the trial court
The High Court con firmed their conviction and 510 sentence
This Court dismissed their special leave peti tionsappeals and subsequent review petitions
Their mercy petitions to the President and or Governor were also re jected
Therefore they approached this Court by way of Writ Petitions for setting aside the death sentence and substi tuting it by a sentence of life imprisonment on the ground of prolonged delay in the execution
They contended that the dehumanising factor of prolonged delay with the mental torture in confinement in jail had rendered the execution unconstitutional
In view of the conflicting decisions of this Court in TV Vaitheeswaran vs State of Tamil Nadu and Sher Singh  Ors
vs The State of Punjab  and observations in Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra  on the question of delay the writ petitions were referred to a five judges Bench
While a Bench of two Judges held in Vaitheeswaran s case that two years delay in execution of the sentence after the judgment of the trial court would entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life a three Judges  Bench held in Sher Singh s case that delay alone is not good enough for commu tation and two year s rule could not be laid down in the cases of delay and that the Court in the context of the nature of the offence and delay could consider the question of commutation of death sentence
In Javed s case this Court observed that where the condemned man had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records this period of two years and nine months with the sentence of death heavily weighing on his mind would entitle him for commuta tion of sentence of death into imprisonment for life
The questions for consideration in these cases were a whether prolonged delay in execution of the sentence of death rendered it inexecutable and entitled the accused to demand the alternate sentence of imprisonment for life b what should be the starting point for computing this delay c what were the rights of a condemned prisoner who had been sentenced to death but not executed and d what could be the circumstances which should be considered along with the time that had been taken before the sentence is execut ed
On October 11 1988 this Court dismissed all the writ petitions except Writ Petition No 1566 of 1985 which was partly allowed and the sentence of death awarded to the accused was substituted by the sen 511 tence of imprisonment
Over ruling the decision in Vaithees warans case that two years  delay would make the sentence of death inexecutable this Court held that undue long delay in execution of the sentence of death would entitle the condem ned person to approach this Court under Article 32 but this Court would only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and would have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death that this Court might consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execu tion of the sentence should be carried out or should be altered into imprisonment for life and that no fixed period of delay would be held to make the sentence of death inexe cutable
Reasons for the judgment were to follow
Giving the reasons for the Judgment HELD Majority Oza Murari Mohon Dutt Singh and Sharma JJ
Per Oza J 11 The delay which could be considered while consider ing the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the apex Court is pronounced ie when the judi cial process has come to an end
528E F 12 The condemned prisoner knows that the judgment pronounced by the Sessions Court in the case of capital punishment is not final unless confirmed by the High Court
All the delay upto the final judicial process is taken care of while the judgment is finally pronounced and in a number of cases the time that has elapsed from the date of offence till the final decision has weighed with the courts and lesser sentence awarded only on this account
526E H 527A State of Uttar Pradesh vs Lalla Singh and others  Sadhu Singh vs State of UP AIR 1978 SC 1506 State of UPv
Sahai AIR 1981 SC 1442 and Joseph Peter vs State of Goa Daman  Diu   referred to
Piare Dusadh and others vs The King Emperor 1944 Federal Court Reports 61 referred to
13 Practically in all the High Courts a confirmation case ie a 512 case where the sentence of death is awarded by the Sessions Court and is pending in the High Court for confirmation in the High Court a time bound programme is provided in the rules and except on some rare occasions the High Court has disposed of a confirmation case between six months to one year
At the Sessions level also the normal procedure of the sessions trial is that it is taken up day today and it is expected that such a sessions case should be given top priority and it is expected that such trials must continue day to day till it is concluded
Even in this Court al though there is no specific rule normally these matters are given top priority and ordinarily it is expected that these matters will be given top priority and shall be heard and disposed of as expeditiously as possible
Therefore as long as the matter is pending in any Court before any final adjudication even the person who has been condemned or sentenced to death has a ray of hope
Therefore it could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms day
527G H 528C E 14 After the matter is finally decided judicially it is open to the person to approach the President or the Governor as the case may be with a mercy petition
It is no doubt true that sometimes such mercy petition and review petitions are filed repeatedly causing delay but a legiti mate remedy if available in law a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that alone will be a matter attracting the jurisdiction of this Court to consider the question of execution of the sentence
However while con sidering the question of delay after the final verdict is pronounced the time spent on petitions for review and repeated mercy petitions at the instance of convicted person himself shall not be considered
528F G 529A 15 The only delay which would be material for consider ation will be the delay in disposal of the mercy petitions or delays occurring at the instance of the Executive
529B 16 When petitions under article 72 or 161 are received by the authorities concerned it is expected that these peti tions shall be disposed of expeditiously
529C TV Vaitheeswaran vs State of Tamil Nadu  over ruled
Sher Singh  Others vs The State of Punjab   affirmed
513 Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra   referred to
21 A judgment of the Court can never be challenged under article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to chal lenge as violating article 14 or 21
531G H Naresh Shridhar Mirajkar and Ors
vs State of Maharash tra and Anr
  and AR Antulay vs RS Nayak and another   relied on
22 The only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judi cial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court
532A B 23 It will not be open to this Court in exercise of jurisdiction under article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circum stances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper
The nature of the offence circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict
It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant
532B D 24 The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also
532D 31 Before 1955 sentence of death was the rule the alternative sentence had to be explained by reasons
There after it was left to the discretion of the court to inflict either of the sentences and ultimately in the 1973 Code normal sentence is imprisonment for life except that for the special reasons to be recorded sentence of death could be passed
This indicates a trend against sentence of death but this coupled with the decisions wherein sentence of death has been accepted as constitu 514 tional show that although there is a shift from sentence of death to lesser sentence there is a clear intention of maintaining this sentence to meet the ends of justice in appropriate cases
Therefore in spite of the divergent trends in the various parts of the world there is a consist ent thought of maintaining the sentence of death on the statute book for some offences and in certain circumstances where it may be thought necessary to award this extreme penalty
It is awarded in the rarest of rare cases and this is the accepted position of law
524B D Bachan Singh etc
vs State of Punjab etc
  and Machhi Singh and others vs State of Punjab referred to 32 The circumstances in which the extreme penalty should be inflicted cannot be enumerated in view of complex situation in society and the possibilities in which the offence could be committed and the Legislature was there fore right in leaving it to the discretion of the judicial decision as to what should be the sentence in particular circumstances of the case
But the Legislature has put a further rider that when the extreme penalty is inflicted it is necessary for the court to give special reasons thereof
525H 526A B 4
The prisoner who is sentenced and kept in jail custody under a warrant under section 3662 of the Criminal Procedure Code is neither suffering rigorous imprisonment nor simple imprisonment
In substance he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence which has been awarded
Hence this will not amount to double jeopardy
53 1E The life of the condemned prisoner in jail awaiting execution of sentence must be such which is not like a prisoner suffering the sentence and it is essential that he must be kept safe
531F Sunil Batra vs Delhi Administration  re ferred to
Per Jagannatha Shetty J Concurring 5
Article 21 demands that any procedure which takes away the life and liberty of persons must be reasonable just and fair
This procedural fairness is required to be observed at every stage and till the last breath of the life
546C 515 Maneka Gandhi vs Union of India 1978 1 SCC 248 The State of West Bengal vs Anwar Ali   Bachan Singh vs State of Punjab  Mithu vs State of Punjab  and Sher Singh vs State of Punjab 1983 2 SCC 582 relied on
61 The delay which is sought to be relied upon by the accused consists of two parts
The first part covers the time taken in the judicial proceedings
It is the time that the parties have spent for trial appeal further appeal and review
The second part takes into fold the time utilized by the executive in the exercise of its prerogative clemency
547H 548A B 62 The time taken in the judicial proceedings by way of trial and appeal was for the benefit of the accused
It was intended to ensure a fair trial to the accused and to avoid hurry up justice
The time is spent in the public interest for proper administration of justice
If there is inordinate delay in disposal of the case the trial court while sen tencing or the appellate court while disposing of the appeal may consider the delay and the cause thereof along with other circumstances
The court before sentencing is bound to hear the parties and take into account every circumstance for and against the accused
If the court awards death sentence notwithstanding the delay in disposal of the case there cannot be a second look at the sentence save by way of review
548F H 63 There cannot be a second trial on the validity of sentence based on article 21
The execution which is impugned is execution of a judgment and not apart from judgment
If the judgment with the sentence awarded is valid and binding it fails to be executed in accordance with law
Therefore if the delay in disposal of the case is not a mitigating circumstance for lesser sentence it would be wholly inap propriate to fail back upon the same delay to impeach the execution
548H 549A B 64 If the delay in passing the sentence cannot render the execution unconstitutional the delay subsequent thereof cannot also render it unconstitutional Much less any fixed period of delay could be held to make the sentence inexe cutable
It would be arbitrary to fix any period of limita tion for execution on the ground that it would be a denial of fairness in procedure under Article 21
549B C TV Vaitheeswaran vs State of Tamil Nadu  over ruled
516 65 The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made
It may also depend upon the number of mercy petitions submitted by or on behalf of the accused
The Court therefore cannot prescribe a time limit for disposal of even mercy petitions
However Article 21 is relevant at all stages and the principle that speedy trial is a part of one s fundamental right to life and liberty is no less important for disposal of mercy petition
549E F Hussainara Khatoon vs The State of Bihar 1979 3 SCR 169 and  and Kadra Pahadiya vs State of Bihar and relied on
66 It has been universally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture
He may be provided with amenities of ordinary inmates in the prison
But nobody could succeed in giving him peace of mind
549G H Sunil Batra vs Delhi Administration  re ferred to
As between funeral fire and mental worry it is the latter which is more devastating for funeral fire burns only the dead body while the mental worry burns the living one
This mental torment may become acute when the judicial verdict is finally set against the accused
Earlier to it there was every reason for him to hope for acquittal
That hope is extinguished after the final verdict
If therefore there is inordinate delay in execution the condemned pris oner is entitled to come to the court requesting to examine whether it is just and fair to allow the sentence of death to be executed
550C 67 The jurisdiction of the Court at this stage is extremely limited
The Court while examining the matter cannot take into account the time utilised in the judicial proceedings up to the final verdict
The Court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under article 226 or under article 32 of the Constitution after the final judgment affirming the conviction and sentence
The Court may only consider whether there was undue long delay in disposing of mercy petition whether the State was guilty of dilatory conduct and whether the delay was for no reason at all
Though the inordinate delay may be a significant factor but that by itself cannot render the execution uncon 517 stitutional
Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself
550D G TV Vaitheeswaran vs State of Tamil Nadu over ruled
Sher Singh vs State of Punjab  affirmed
Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra   Vivian Rodrick vs The State of West Bengal   State of UP vs Paras Nath Singh  Ors  Bihar vs Pashupati Singh   State of UP vs Suresh at 643 State ofU P vs Sahai  Ram Adhar vs State of UP at 777 State of UP vs Lalla Singh  Nachhittar Singh vs State of Punjab  Maghar Singh vs State of Punjab  Lajar Mashi vs State of UP  Hussainara Khatoon vs The State of Bihar 1979 3 SCR 169 and  and Kadra Pahadiya vs State of Bihar and referred to
68 If the Court wants to have a look at the grievance as to delay then there should not be any delay either in listing or in disposal of the matter
The person who com plaints about the delay in the execution should not be put to further delay
The matter therefore must be expedi tiously and on top priority basis disposed of
550D E 69 The contention that the accused should not be exe cuted if he has since improved is unavailable since it seeks to substitute a new procedure which the Code does not provide for
551B 7
The judicial verdict pronounced by court in relation to a matter cannot be challenged on the ground that it violates one s fundamental right
The judgment of a court cannot be said to affect the fundamental rights of citizens
534A B Naresh Sridhar Mirajkar relied on
It is now obligatory for the court to state reasons for the sentence awarded for the offence of murder
The court cannot award death sentence without giving special reasons and only in exceptional cases and not in the usual run of murders
There are just six offences carrying death penalty and that too as an alternate sentence
543E F 518 9
The criminal law always keeps pace with the develop ment of society
The punishment which meets the unanimous approval in one generation may rank as the most reprehensi ble form of cruelty in the next
The representatives of the people are cognizant of the contemporary social needs
The legislative amendments brought about from time to time are indicative of their awareness
The penal law cannot remain isolated and untouched
It will be profoundly influenced by philosophy prevailing
Time may reach for the representa tives of people to consider that death penalty even as an alternate sentence for murder is uncalled for and unneces sary
There is nothing in our Constitution to preclude them from deleting that alternate sentence
540C 542H 543H 544A Bachan Singh vs State of Punjab and Mithu vs State of Punjab   referred to
The practice prevailing over the years had been that a larger bench straightaway considers the correctness of and if necessary overrules the view of a smaller bench
This practice has been held to be the crystallised rule of law in a recent decision by a special bench of seven judges of this Court
This must be regarded as a final seal to the controversy and it is now not open to any one to contend that a bench of two judges cannot be overruled by a bench of three judges
536H 537E AR Antulay vs
RS Nayak AIR 2988 SC 1532 followed