ICTION Writ Petition CRL Nos
156686 186851928633888  64987
Under Article 32 of the Constitution of India RK Jain Rangarajan Mrs Urmila Sirur Mohd Naseem Rakesh K Khanna PK Jain Mukul Mudgal Sanjay Parikh BP Singh P Krishna Rao BK Prasad Ms Malini Poduwal Lalit Kumar Gupta Manoj Swarup Harish Salve Rajiv Garg Rajiv Shakdhar ND Garg LK Gupta Amicus curiae M Veerappa and Dalveer Bhandari for the Petitioners
K Parasaran Attorney General B Datta Additional Solicitor General VC Mahajan
TU Mehta Anand Prakash Ms A Subhashini AK Srivastava SK Bhattacharya MNShroff Ms Sushma Ralhan
Mahabir Singh AV
Rangam and RS Suri for the Respondents
519 AK Goel Ajit Pudissery and Mrs Jayamala Singh for the Interveners
The following Judgments of the Court were delivered OZA J
These matters came up before us because of the conflict in the two decisions of this Courti TV Va theeswaran vs State of Tamil Nadu  Sher Singh  Others vs The State of Punjab  and observations in the case of Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra  In Vatheeswaran s case a Bench of two Judges of this Court held that two years delay in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life
The Court observed that Making all reasonable allowance for the time necessary for appeal and consideration of reprieve we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke article 21 and demand the quashing of the sentence of death In Sher Singh s case which was a decision of a three Judges  Bench it was held that a condemned prisoner has a right of fair procedure at all stages trial sentence and incarceration but delay alone is not good enough for commu tation and two years rule could not be laid down in cases of delay
It was held that the Court in the context of the nature of offence and delay could consider the question of commutation of death sentence
The Court observed Apart from the fact that the rule of two years run in the teeth of common experience as regards the time generally occupied by pro ceedings in the High Court the Supreme Court and before the executive authorities
We are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence the sentence must be substituted by the sentence of life imprison ment
There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated
A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid 520 of the sentence of death imposed upon him and indeed there is no one be he blind lame starving or suffering from a terminal illness who does not want to live
 It was further observed Finally and that is no less important the nature of the offence the diverse circum stances attendant upon it its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition if the death sentence is vacated are matters which must enter into the verdict as to wheth er the sentence should be vacated for the reason that its execution is delayed
The substitution of the death sentence by a sen tence of life imprisonment cannot follow by the application of the two years  formula as a matter of quod erat demonstrandum
In Javed s case it was observed that the condemned man who had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records this period of two years and nine months with the sentence of death heavily weighing on his mind will entitle him for commutation of sentence of death into im prisonment for life
It is because of this controversy that the matter was referred to a five Judges  Bench and hence it is before us
Learned counsel for the petitioners at length has gone into the sociological humane and other aspects in which the question of sentence of death has been examined in various decisions and by various authors
It is however not disputed that in Bachan Singh etc
vs State of Punjab etc
  constitutionality of sentence of death has been upheld by this Court
Learned counsel has at length referred to the opinion of Hon
Mr Justice PN Bhagwati as he then was which is the minority opinion in Bachan Singh s case
In his opinion Justice PN Bhagwati has conducted a detailed research and has considered the materi al about the various aspects of sentence of death
Learned Attorney General appearing for the respondents also referred to some portions of the judgment but contended that howsoev er condemned the sentence may be but its constitutional validity having been accepted by this Court all this study about looking at it from various angles is not of much consequence
He also contended that the opinion has been drifting and the statistics reveal that 521 at one time there was a trend towards abolition of death sentence and then a reverse trend started and therefore all this so far as the present case is concerned is not neces sary
One of the contentions advanced by learned counsel for the petitioners was that apart from all other considerations it is clear that this is a sentence which if executed is not reversible and even if later on something so glaring is detected which will render the ultimate conclusion to be erroneous the person convicted and executed could not be brought back to life and it was on this basis that it was contended that although the law provides for the sentence and it has been held to be constitutional but still the Courts should be slow in inflicting the sentence and in fact it was contended that courts are in fact slow in awarding the sentence
In Bachan Singh s case it was observed To sum up the question whether or not death penalty serves any penological purpose is a difficult complex and intractable issue
It has evoked strong divergent views
For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 320 Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution it is not necessary to express any categorical opinion one way or the other as to which of these two antitheti cal views held by the Abolitionists and Retentionists is correct
It is sufficient to say that the very fact that persons of reason learning and light are rationally and deeply divided in their opinion on this issue is a ground among others for rejecting the petitioners  argument that retention of the death penalty in the impugned provisions is totally devoid of reason and purpose
If notwithstanding the view of the Abolitionists to the contrary a very large segment of people the world over including sociologists legislators jurists judges and administra tors still firmly believe in the worth and necessity of capital punishment for the pro tection of society if in the perspective of prevailing crime conditions in India contem porary public opinion channalised through the people s representatives in Parliament has repeatedly in the last three decades rejected all attempts including the one made recently to abolish or specifically restrict the area of death penalty if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world if the framers of the Indian Constitution were fully aware of the existence of death 522 penalty as punishment for murder under the Indian Penal Code if the 35th Report and subsequent Reports of the Law Commission suggesting retention of death penalty and recommending revision of the Criminal Proce dure Code and the insertion of the new sec tions 2352 and 3543 in that Code providing for pre sentence hearing and sentencing proce dure on conviction for murder another capital offences were before the Parliament and pre sumably considered by it when in 1972 73 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure 1973 it cannot be said that the provisions of death penalty as an alternative punishment for murder in section 302 Penal Code is unrea sonable and not in public interest
Therefore the impugned provision in section 302 vio lates neither the letter nor the ethos of Article 19
 We are in entire agreement with the view expressed above
It is not necessary to go into the jurisprudential theories of punishment deterrent or retributive in view of what has been laid down in Bachan Singh s case with which we agree but the learned counsel at length submitted that the modern theorists of jurisprudence have given a go bye to the retributive theory of punishment although in some coun tries it is recognised on a different principle ie to pacify the public anger whereas some theorists have tried to put both the theories together
So far as the deterrent theory of punishment is concerned even about that doubts have been expressed as regards the real deterrent effect of punishment
The absence of determent effect has been at tributed to various causes sometimes long delay itself as public memory is always short
When the convict is utlimate ly sentenced and executed people have forgotten the offence that he has committed and on this basis it is sometimes felt that it has lost its importance
In the present case we are not very much concerned with all these questions except to some extent the question of delay and its effect
It was also contended that this sentence is a sentence which is irreversible thereby meaning that if ultimately some mistake in convicting and executing the sentence is detected after the sentence is executed there is no possi bility of correction
After all the criminal jurisprudence which is in vogue in our system even otherwise eliminates all possibilities of error as benefit of doubt at all stages goes in favour of accused
Apart from it there are only a few offences where sentence of death is provided and there too the manner in which the 523 law has now been changed ultimately the sentence of death is awarded in the rarest of rare case
Therefore not much could be made of the possibility of an error
The offences in which sentence of death is provided are under Sections 120 B in some cases 121 132302307 in some cases and 396
The law as it stood before 1955 the Court was expected to give reasons if it chose not to pass a sentence of death as normally sentence of death was the rule and alternative sentence of imprisonment of life could only be given for special reasons
As Section 367 clause 5 in the Code of Criminal Procedure 1898 stood If the accused is convicted for an offence punishable with death and the Court sentences him to any punishment other than death the Court shall in its judgment state the reasons why the sentence of death was not passed Section 367 clause 5 of Cr
PC was amended in 1955 and after the amendment discretion was left to the courts to give either sentence
Section 367 clause 5 after the amendment reads In trials by jury the Court need not write a judgment but the Court of Sessions shall record the heads of the charge to the jury Provided that it shall not be neces sary to record such heads of the charge in cases where the charge has been delivered in English and taken down in shorthand
 Thus the legislature dropped that part of the sub clause which made it necessary for the Court to state reasons for not awarding sentence of death
Thus after the amendment the legal position was that it was the discretion of the Court to award either of the sentences
In the Code of Criminal Procedure 1973 Section 354 clause 3 has now been introduced and it has been provided that in all cases of murder life imprisonment should be given unless there are special reasons for giving sentence of death
This provision Sec
354 clause 3reads When the conviction is for an offence punish able with 524 death or in the alternative with imprisonment for life or imprisonment of a term of years the judgment shall state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sen tence
 It is thus clear that before 1955 sentence of death was the rule the alternative sentence had to be explained by rea sons
Thereafter it was left to the discretion of the court to inflict either of the sentences and ultimately in the 1973 Code normal sentence is imprisonment for life except for the special reasons to be recorded sentence of death could be passed
It is therefore clear that this indicates a trend against sentence of death but this coupled with the decisions ultimately wherein sentence of death has been accepted as constitutional go to show that although there is a shift from sentence of death to lesser sentence but there is also a clear intention of maintaining this sentence to meet the ends of justice in appropriate cases
It is there fore clear that in spite of the divergent trends in the various parts of the World there is consistent thought of maintaining the sentence of death on the statute book for some offences and in certain circumstances where it may be thought necessary to award this extreme penalty
As stated generally that it is awarded in the rarest of rare cases and in this accepted position of law in our opinion it is not necessary to go into the academic question about sociologi cal and humane aspects of the sentence and detailed examina tion of the jurisprudential theories
It was also contended though not very seriously that in ultimate analysis out of the two sentences imprisonment for life or death it has been left to the discretion of the courts
On the one hand it was suggested that there are no norms laid down for exercise of discretion but on the other hand it was also admitted that it is very difficult to lay down any hard and fast rule and apparently both the sides realised that the attempt that was made by this Court in enumerating some of the circumstances but could not lay down all possible circumstances in which the sentence could be justified
In Machhi Singh and others vs State of Punjab it was observed that In this background the guidelines indicated in Bachan Singh s case will have to be culled out and applied to the facts of each individu al case where the question of imposing of death sentence arises
The following proposi tions emerge from Bachan Singh s case i The extreme penalty of death need not be inflicted 525 except in gravest cases of extreme culpabili ty
ii Before opting for the death penalty the circumstances of the offender  also require to be taken into consideration along with the circumstances of the crime 
iii Life imprisonment is the rule and death sentence is an exception
In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime and provided and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances
iv A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circum stances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised
In order to apply these guidelines inter alia the following questions may be asked and answered a Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence b Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circum stances which speak in favour of the offender If upon taking an overall global view of all the circumstances in the light of the afore said  proposition and taking into account the answers to the questions posed hereinabove the circumstances of the case are such that death sentence is warranted the court would proceed to do so
 In ultimate analysis it could not be disputed and was not seriously disputed that the circumstances in which the extreme penalty 526 should be inflicted cannot be enumerated in view of complex situation in society and the possibilities in which the offence could be committed and in this context in ultimate analysis it is not doubted that the Legislature therefore was right in leaving it to the discretion of the judicial decision as to what should be the sentence in particular circumstances of the case
But the Legislature has put a further rider that when the extreme penalty is inflicted it is necessary for the court to give special reasons thereof
In the matter before us we are mainly concerned with a delay in execution of the sentence of death b what should be the starting point for computing this delay c what are the rights of a condemned prisoner who has been sentenced to death but not executed and d what could be the circum stances which could be considered alongwith the time that has been taken before the sentence is executed
The main theme of the arguments on the basis of delay has been the inhuman suffering which a condemned prisoner suffers waiting to be executed and the mental torture it amounts to and it is in this background also that the par ties argued at length about the starting point which should be considered for computing delay in execution of the sen tence
On the one hand according to the petitioners the mental torture commences when the trial court ie the Sessions Court pronounces the judgment and awards capital punishment
However learned counsel also conceded that even the condemned prisoner knows that the judgment pronounced by the Sessions Court in the case of capital punishment is not final unless confirmed by the High Court
Mainly therefore it was contended that the real mental torture commences after the death sentence is confirmed by the High Court and therefore to consider the question of delay the time should be computed from the date of the High Court judgment
On the other hand learned Attorney General contended that even if the judgment of confirmation by the High Court is passed in which capital punishment is awarded invariably comes to this Court and this Court ordinarily grants leave and ap peals are heard at length and it was therefore contended that the delay in execution of the sentence really could be considered after the pronouncement of the final verdict by this Court and it is only after the final verdict is pro nounced that it could be said that the judicial process has concluded
It is no doubt true that sometimes in these procedures some time is taken and sometimes even long time is spent
May be for unavoidable circumstances and sometimes even at the instance of the accused but it was contended and rightly so that all this delay upto the final judicial process is taken care of while 527 the judgment is finally pronounced and it could not be doubted that in number of cases considering the time that has elapsed from the date of the offence till the final decision has weighed with the courts and lesser sentence awarded only on this account
As early as in 1944 the Federal Court in Piare Dusadh and others vs The King Emperor 1944 Federal Court Reports 61 observed It is true that death sentences were imposed in these cases several months ago that the appellants have been lying ever since under the threat of execution and that the long delay has been caused very largely by the time taken in proceedings over legal points in respect of the constitution of the courts before which they were tried and of the valid ity of the sentences themselves
We do not doubt that this court has power where there has been inordinate delay in executing death sentences in cases which come before it to allow the appeal in so far as death sentence is concerned and subsitute a sentence of transportation for life on account of the time factor alone however right the death sentence was at the time when it was originally im posed Similarly in State of Uttar Pradesh vs Lalla Singh and others  Sadhu Singh vs State of UP AIR 1978 SC 1506 State of UP vs Sahai AIR 1981 SC 1442 and Joseph Peter vs State of Goa
Daman  Diu  while finally deciding the matter the courts have taken notice of the delay that has occurred in the judicial proc ess
It was contended that Article 21 contemplates not only a fair procedure but also expeditious procedure and in this context it was contended that observations be made so that judicial process also is concluded as expeditiously as possible
Learned Attorney General has filed compilation of rules of various High Courts and it is not disputed that practically in all the High Courts a confirmation case where the sentence of death is awarded by the Sessions Court and the case is pending in the High Court for confirmation time bound programme is provided in the rules and it could be said that except on some rare occasion the High Court has disposed of a confirmation case between six months to one year and therefore it could not be said that there is no procedure provided for expeditious disposal of these cases
At the Sessions level also the normal procedure of the Sessions trial is that it is taken up day to day although after coming into force of the Code of 528 Criminal Procedure in 1973 where the number of offences triable by the Sessions Court have been increased but there is sometimes a slight departure from the normal rule which is the cause to some extent for some slackness in the Ses sions trial but attempt is always made and it is expected that Sessions case where offences alleged is one which is punishable with death should be given top priority and normally it Is given top priority and it is expected that the trials must continue day to day unless it is concluded
Although it is well known that sometimes it is at the in stance of the advocates appearing for defence also that this normal rule is given a go bye but ordinarily it is expected that these cases must be tried expeditiously and disposed of
Even in this Court although there does not appear to be a specific rule but normally these matters are given top priority
Although it was contended that this reference before us a Bench of five Judges was listed for heating after a long interval of time
We do not know why this reference could not be listed except what is generally well known the difficulty of providing a Bench of five Judges but ordinarily it is expected that even in this Court the matters where the capital punishment is involved will be given top priority and shall be heard of and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any Court before final adjudication even the person who has been condemned or who has been sentenced to death has a ray of hope
It therefore could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms Day
The delay therefore which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the apex court is pronounced ie when the judicial process has come to an end
After the matter is finally decided judicially it is open to the person to approach the President or the Gover nor as the case may be with a mercy petition
Some times person or at his instance or at the instance of some of his relatives mercy petition and review petitions are filed repeatedly causing undue delay in execution of the sentence
It was therefore contended that when such delay is caused at the instance of the person himself he shall not be entitled to gain any benefit out of such delay
It is no doubt true that sometimes such petitions are filed but a legitimate remedy if available in law a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that alone will be a matter at tracting the jurisdiction of this Court to consider the question of the execution of the 529 sentence
While considering the question of delay after the final verdict is pronounced the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself however shall not be considered
The only delay which would be material for consideration will be the delays in disposal of the mercy petitions or delay occurring at the instance of the Executive
So far as the scope of the authority of the President and the Governor while exercising jurisdiction under Article 72 and Article 16 1 are concerned the question is not at all relevant so far as the case in hand is concerned
But it must be observed that when such petitions under Article 72 or 161 are received by the authorities concerned it is expected that these petitions shall be disposed of expedi tiously
It was also contended that when capital punishment is awarded the sentence awarded is only sentence of death but not sentence of death plus imprisonment and therefore if a condemned prisoner has to live in jail for long in substance it amounts to punishment which is sentence of death and imprisonment for some time and this according to the learned counsel will amount to double jeopardy which is contrary to Article 20 and the imprisonment cannot be justified in law
Section 366 of the Code of Criminal Procedure provides 366
Sentence of death to be submitted by Court of Session for confirmation 1 When the Court of Session passes a sentence of death the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court
2 The Court passing the sentence shall commit the convicted person to jail custody under a warrant
 This no doubt authorises the Court of Sessions to commit a person sentenced to death to jail custody under a warrant
But this Section does not contemplate how long he has to be in jail
Clause 1 of Section 366 provides that when the Court of Sessions passes a sentence of death the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court
It is therefore apparent that sub clause 2 provided for committing the convicted person to jail awaiting the confir mation of the sentence by the High Court
It is also clear that when a person is committed to jail awaiting the execu tion of the sentence of death it is not imprisonment but the prisoner has to be kept secured till the 530 sentence awarded by the court is executed and it appears that it is with that purpose in view that sub clause 2 of Section 366 simply provided for committing the convicted person to jail custody under a warrant
The question about solitary confinement or keeping the condemned prisoner alone under strict guard as provided in various jail manuals was considered by this Court in Sunil Batra vs Delhi Administration  and consid ering the question of solitary confinment it was observed In our opinion sub section
2 of section 30 does not empower the jail authorities in the garb of confining a prisoner under sentence of death in a cell apart from all other prisoners to impose solitary confinement on him
Even jail discipline inhibits solitary confinment as a measure of jail punishment
It completely negatives any suggestion that because a pris oner is under sentence of death therefore and by reason of that consideration alone the jail authorities can impose upon him addition al and separate punishment of solitary con finement
They have no power to add to the punishment imposed by the Court which addi tional punishment could have been imposed by the Court itself but has in fact been not so imposed
Upon a true construction sub section
2 S30 does not empower a prison authority to impose solitary confinment upon a prisoner under sentence of death
 In the same judgment it was further observed What then is the nature of confinement of a prisoner who is awarded capital sentence by the Sessions Judge and no other punishment from the time of sentence till the sentence becomes automatically executable Section 3662 of the Cr
PC enable the Court to commit the convicted person who is awarded capital punishment to jail custody under a warrant
It is implicit in the warrant that the prisoner is neither awarded simple nor rigorous imprisonment
The purpose behind enacting sub section
2 of S366 is to make avail able the prisoner when the sentence is re quired to be executed
He is to be kept in jail custody
But this custody is something different from custody of a convict suffering simple or rigorous imprisonment
He is being kept in jail custody for making him available for execution of the sent 531 ence as and when that situation arises
After the sentence becomes executable he may be kept in cell apart from other prisoners with a day and night watch
But even here unless special circumstances exist he must be within the sight and sound of other prisoners and be able to take food in their company
If the prisoner under sentence of death is held in jail custody punitive deten tion cannot be imposed upon him by jail au thorities except for prison offences
When a prisoner is committed under a warrant for jail custody under section 3662 Cr
PC and if he is detained in solitary confinement which is a punishment prescribed by section 73 IPC it will amount to imposing punishment for the same offence more than once which would be viola tive of Article 202
But as the prisoner is not to be kept in solitary confinement and the custody in which he is to be kept under section 302 as interpreted by us would preclude detention in solitary confinement there is no chance of imposing second punishment upon him and therefore section 302 is not violative of Article 20
 It is therefore clear that the prisoner who is sentenced to death and is kept in jail custody under a warrant under Section 3662 he is neither serving rigorous imprisonment nor simple imprisonment
In substance he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence which has been awarded and in this view the aspect of solitary confinement has already been dealt with in the above noted case but it must be said that the life of the condemned prisoner in jail awaiting execution of sentence must be such which is not like a prisoner suffering the sentence but it is also essen tial that he must be kept safe as the purpose of the jail custody is to make him available for execution after the sentence is finally confirmed
It was contended that the delay in execution of the sentence will entitle a prisoner to approach this Court as his right under Article 21 is being infringed
It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to chal lenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar and Ors
vs State of Maharashtra and Anr
  and also in AR Antulay vs
RS Nayak and 532 another  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 judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court
But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circum stances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper
The nature of the offence circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict
It may also be open to the court to examine or consider any circum stances after the final verdict was pronounced if it is considered relevant
The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also
So far as our conclusions are concerned we had delivered our Order on October 11 1988 and we had reserved the rea sons to be given later
Accordingly in the light of the discussions above our conclusion is as recorded in our Order dated October 11 1988 reproduced below Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re open the conclusions reached by the Court while finally maintaining the sentence of death
This Court however may consider the question of inordi nate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life
No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran s case cannot be said to lay down the correct law and therefore to that extent stands overruled 533 K JAGANNATHA SHETTY J In Bachan Singh vs State of punlab  this Court pronounced that the provision of death penalty as an alternative punishment for murder under sec302 IPC is valid and constitutional
Sarkaria J who spoke for the majority view held that the provisions relating to imposition of death sentence and the procedure prescribed thereof would ensure fairness and reasonableness within the scope of Article 21
It was also observed that by no stretch of imagination it can be said that death penalty under sec
302 either per se or because of execution by hanging constitutes an unreasonable cruel or unusual punishment Nor the mode of its execution has a degrading punishment which would defile the dignity of the individual  within the preamble to the Constitution
The learned Judge however cautioned at 751 A real and abiding concern for the dignity of human life postulates resistance to taking a life through law s instrumentali ty
That ought not to be done save in the rarest of rare cases when the alternative option is unquestionable foreclosed
 Empha sis supplied Bachan Singh case has thus narrowly tailored the sen tencing discretion of courts as to death sentence
Death sentence cannot be given if there is any mitigating circum stance in favour of the accused
All circumstances of the case should be aggravating
It is in the gravest of grave crimes or in the rarest of rare cases the death sentence may be awarded
There is no offence in the penal code carry ing mandatory death penalty
Section 303 IPC carrying the mandatory punishment has been declared unconstitutional in Mithu vs State of Punjab  So much so the death sentence is now awarded only in miniscule number of cases
All the accused in these cases belong to that limited and exceptional category
The trial court convicted them under sec
302 IPC and sentenced them to death
The High Court confirmed their conviction and sentence
This Court dismissed their special leave petitions or appeals and subsequent review petitions
Their mercy petitions to the President andor the Governor were also rejected
They have now moved writ petitions under Article 32 of the Constitu tion
They are not seeking to overturn the death sentence on the ground that the Court has illegally inflicted it
Obvi ously that they can not do
The judgment of the court has become final
Under Article 141 it shall be binding on all Courts
Under Article 142 it shall be enforceable through out the territory of India
Under Article 144 all authori ties 534 civil and judicial in the territory of India shall act in aid of this Court
The judicial verdict pronounced by court in relation to a matter cannot be challenged on the ground that it violates one s fundamental right
The judgment of a court cannot be said to affect the fundamental rights of citizens See Naresh Sridhar Mirajkar s case The petitioners however contend that this Court must set aside the death penalty and substitute a sentence of life imprisonment in view of the prolonged delay in the execution
The dehumanising factor prolonged delay with the mental torture in solitary confinement in jail according to them has rendered the execution unconstitutional under Article 21
There are also some other subsidiary contentions to which I will presently refer
We have earlier dismissed all but one petition giving our unanimous conclusion stating therein that we would give our reasons later
Here are my own reasons in support of that conclusion The question whether prolonged delay renders death sentence inexecutable and entitles the accused to demand the alternate sentence of life imprisonment has arisen amid the diversity of judicial decisions in i TV Vaitheeswaran vs State of Tamil Nadu  ii Sher Singh vs State of Punjab   and iii Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra  Vaitheeswarn case was decided by a two Judge Bench where Chinnappa Reddy J said at 359 We find no impediment in holding that the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriv ing a person of his life in an unjust unfair and unreasonable way as to offend the consti tutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law
The appropriate relief in such a case is to vacate the sentence of death
 There then the learned Judge said at 360 Making all reasonable allowance for the time necessary for appeal and considera tion of reprieve we think that delay exceed ing two years in the execution of a sentence of death should be considered sufficient to entitle the person 535 under sentence of death to invoke Article 21 and demand the quashing of the sentence of death Sher Singh case was decided by a three Judge Bench
Chandrachud CJ who spoke for the Bench while disagreeing with above view in Vaitheeswaran said at 595 The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years  formula as a matter of quod erat demonstrandum Then followed the decision in Javed Ahmad case
There Chinnappa Reddy J raised a question whether a three Judge Bench would overrule the decision of a two Judge Bench merely because three is larger than two The learned Judge said The court sits in division of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to over rule the decision of a Division Bench of two Judges
Vide Young vs Bristol Aeroplane Co Ltd It may be otherwise where a full Bench does so
We do not however desire to embark upon this question in this case
In the present case
we are satisfied that an overall view of all the circumstances appears to us to entitle the petitioner to invoke the protec tion of Article 21 of the Constitution
We accordingly quash the sentence of death and substitute in its place the sentence of im prisonment for life
 The question posed in Javed Ahmad case relates to the practice and procedure of this Court
It presents little problem and could be conveniently disposed of without much controversy
At the time of flaming the Constitution Mr BN Rau after his return from United States reported to the President of the Constitution Assembly as follows Again Justice Frankfurter was very emphatic that any jurisdiction exercisable by the Supreme Court should be exercised by the full Court
His view is that the highest Court of appeal in the land should not sit in divi sions
Every Judge except of course such judges as may be disqualified by personal interest or otherwise from hearing 536 particular cases should share the responsi bility for every decision of the Court The Framing of India s Constitution Vol
III by section Shiva Rao p 219
This was a very good suggestion
But unfortunately that suggestion was not accepted and the principle which was dear to Justice Frankfurter was not incorporated in out Constitu tion
The result iS that each Judge does not share the responsibility for every decision of this Court
For a proper working arrangement in the Court we have framed Rules under Article 145 of the Constitution confer ring power on the Chief Justice to constitute benches for disposal of cases
Order VII Rule 1 of the Supreme Court Rules 1966 provides that every cause appeal or matter shall be heard by a Bench consisting of not less than two judges nominated by the Chief Justice
But this rule is subject to the requirement under Article 1453 of the Constitution
Article 1453 requires a minimum number of five judges for deciding any case involving substantial question of law as to interpretation of the Constitution
In any event the Supreme Court has to sit in benches with judges distributed as the Chief Justice desires In this context Order VII Rule 2 of the Supreme Court Rules also needs to be noted
It provides Where in the course of the hearing of any cause appeal or other proceeding the bench considers that the matter should be dealt with by a larger bench it shall refer the matter to the Chief Justice who shall thereupon constitute such a bench for the hearing of it
 This is undoubtedly a salutory Rule but it appears to have only a limited operation
It apparently governs the procedure of a smaller bench when it disagrees with the decision of a larger bench
The bench in the course of hearing of any matter considers that the matter should be dealt with by a larger bench it shall refer the matter to the Chief Justice
The Chief Justice shall then consitute a larger bench for disposal of the matter
This exercise seems to be unnecessary when a larger bench considers that a decision of a smaller bench is incorrect unless a constitu tional question arises
The practice over the years has been that a larger bench straightaway considers the correctness of and if necessary overrules the view of a smaller bench
This practice has been held to be a crystallised rule of law in a recent decision by a 537 special bench of seven learned judges
In AR Antulay vs
RS Nayak   Sabyasachi Mukharji J speaking for the majority said The principle that the size of the bench whether it is comprised of two or three or more judges does not matter was enunciat ed in Young vs Bristol Aeroplace Ltd supra and followed by Justice Chinnappa Reddy in Javed Ahmad A bdul Hamid Pawla vs State of Maharashtra  where it has been held that a Division Bench of two judges has not been followed by our courts
XXXX XXXX XXXX XXXX XXXX The law laid down by this Court is some what different
There is a hierarchy within the court itself here where larger benches over rule smaller benches
See Mattulal vs Radhey Lal 1975 1 SCR 127   Union of India vs KS Subramanian  at 92  at 2437 and State of UPv
Ram Chandra Trivedi  at 473  at 2555
This is the practice followed by this Court and now in is a crystallised rule of law
 The answer to the question posed in Javed Ahmad case thus stands concluded and it is now not open to any one to contend that a bench of two judges cannot be overruled by a bench of three judges
We must regard this as a final seal to the controversy
Before grappling with the crucial issue that has been raised in these petitions it would be convenient to dispose of what may be regarded as peripheral submissions
Mr RK Jain learned counsel who led the arguments on behalf of the petitioners referred to us in detail the consideration of justice morality and usefulness of capital punishment
The counsel also referred to us the opinion expressed by eminent persons like Shri Arvindo Tales of Prison Life with regard to torment in the prison life
He also invited our attention to the dissenting opinion of Bhagwati J in Bachan Singh where learned Judge observed that the execution serves no social purpose The learned counsel made an impassioned appeal to save the life of these condemned persons by sub stituting life imprisonment on the ground of inordinate delay in execution
I can really appreciate the compassion ate feeling with which the counsel made his submission
The self in 538 him came out with every word he uttered
He seems to belong to a faith where non violence  to every life is a must
Not that we are different underneath the rotes
As said by Justice Brennan white dealing with his opinion in Furman vs Georgia  I am not that we are each not a human being with personal views and moral sensioilties and religious scruples
But it is to say that above all 1 am a Judge
The Oliver wendell Homes Lecture delivered in September 5 1986
We are flesh and blood mortals with normal human traits
Indeed like all others we too have some inborn aversions and acquired attractions
But it is not for us while presiding over courts to decide what pun ishment or philosophy is good for our people
While examin ing constitutional questions we must never forget Mar shall s mighty phrase that it is a constitution that we are expounding
We are oath bound to protect the Constitution
We are duty bound to safeguard the life and liberties of persons
We must enforce the constitutional commands no matter what the problem
In other issues of constitutional considerations we must understand the aspirations and convictions of men and women of our time
And we should not be swayed by our own convictions
We must never allow our individuality t0 overshadow or supersede the philosophy of the Constitution
These are various philosophical ideologies and underpin nings about the purposes of punishment
It includes among others deterfence retribution protecting persons punish ing guilty and acquitting the innocent
Among these objec tives deterfence and retribution are prominent
Retribution is often confused with revenge but there are distinct differences
Retribution embodies the concept that an of fender should receive what he rightfully deserves
Deter fence has a two fold object
The first object relates to specific deterrence
It will deter the individual from committing the same or other offences in the future
The second object is as to general deterrence
It will convince or deter others that crime does not pay See Crime and Punishment  by Harry E Allen  Ors
at 735
The Law Commission of India summarised these aspects as to the capital sentence 35th report para 265 18 The fact remains however that whenever there is a serious crime
the society feels a sense of disapprobation
If there is any element of retribution in the law as administered now it is not the instinct of the man of jungle but rather a refined evolu tion of that instinct the feeling prevails in the public is a fact of which notice is to be taken
The law 539 does not encourage it or exploit it for any undesirable ends
Rather by reserving the death penalty for murder and thus visiting this gravest crime with the gravest punishment the law helps the element of retribution merge into the element of deterrence
 Sarkaria J after referring to this report speaking for the majority in Bachan Singh 19801 2 SCC 684 at 721 recognises Retribution and deterrence are not two divergent ends of capital punishment
They are convergent goals which ultimately merge into one
 The punishments are provided in order to deter crimes
The punishments are imposed to make the threat credible
Threats and imposition of punishments are obviously necessary to deter crimes
As a venerated British Historian Arthur Bryant writes The sole justification for the death penalty is not to punish murderers but to prevent murder Professor Earnest Van Den Haag states The murderer learns through his punishment that his fellow men have found him unworthy of living that because he has mur dered he is being expelled from the community of the living
This degradation is self in flicted
By murdering the murderer has so dehumanised himself that he cannot remain among the living
The social recognition of his self degradation is the punitive essence of execution
 See Harward Law Review 1986 Vol
99 p 1699
Of course one cannot have any empirical data to prove that capital punishment can be deterrent greater than life imprisonment
It may be that most killers as the Professor Jack Greenberg states do not engage in anything like a cost benefit analysis
They are impulsive and they kill impulsively
 The paradigm of this kind of murderers cannot be properly accounted for
However many classic experiments on the effects of corporal punishments on dogs monkeys pigeons and other animals have been conducted in psychology laboratories
Graeme Newman in his book Just and Painful at 127 refers to such experiments
The learned author states that corporal punishment works and it has been so successful that some animals have starved themselves to death rather than eat the forbidden food
This position with the human beings is said to be not different
Indeed it cannot be different as we could see from day to day life
As between life and 540 death one lives life
It is the love of life with sensuous joy of companionship that moves the race and not so much the ideals
One views the death with trepidation
In fact every living being dreads death and it cannot be an exception with those on death row
They like all others want to live and live as long as they can
Because the life has its own attraction no matter in what form and condition
The death has no such attraction and cannot have any since it is the most mysterious of all in this world
The criminal law always keeps pace with the development of society
It reflects as Chief Justice Warren said the evolving standards of decency that mark the progress of a maturing society
Trop vs Dulles   101 1958
We have much to learn from history of every country
The punishment which meets the unanimous approval in one generation may rank as the most reprehensible form of cruelty in the next
Take for instance the punishment of whipping
A search of historical records of 16th century England shows that men and women were whipped unmercifully for trivial offences as peddling being drunk on a Sunday and participating in a riot
Many other instances of ferocious whippings of men and women both for political and other offences besprinkle and blacken English historical records
Rarely did any shred of excuse for human frailty seem to enter into the souls of those sitting in judgment
In the days of Charles the Sec ond however the Duke of York did interpose in one such case he saved Lady Sophia Lindsay from being publicly whipped through the streets of Edinburgh for the crime of assisting at the escape of the Earl of Argyle her own father in law
In the early eighteen hundreds the Australian penal settlements were the scene of floggings of so severe a nature as to rival for sheer savagery the worst that were inflicted in England during the sixteenth century or in the southern State of America during the days of slavery
In the United States of America whipping was a favorite seven teenth century punishment for various offences and both male and female culprits came under the lash
Of all the civilized nations Russia may be considered to be the one which not only used the whip unmercifully but also as the nation which continued to use it longer by far and for a greater variety of crimes than did any other
Next to Rus sia for sheer love of whipping comes China and little less formidable than the Russian known is the Chinese rod of split bamboo
The sharp edges of the bamboo cut into the flesh inflicting terrible lacera 541 tions
Little wonder that deaths as a result of these floggings have been frequent and that those who escape this fate are often so terribly mutilated that they remain crippled for the rest of their lives The History of corpo ral Punishment by GR Scott 1948 pages 39 to 56
Take the history of punishment of death in England
In 1810 Sir Samuel Romilly who asked the Parliament to abolish the death penalty for some of crimes said there is probably no other country in the world in which so many and so great a variety of human actions are punishable with loss of life as in England
A History of English Criminal Law By L Radzinowicz V1 p1
The beginning of the nineteenth century was a period of indiscriminate imposition of capital punishment in England for numerous widely differing offences
There were two hundred or more such offences
There were several legisla tions providing punishment of death in the reign of George IV
All felonies except petty larceny and mayhem were theo retically punishable with death
From 1827 to 1841 several legislations were passed abolishing the punishment of death in a variety of cases
Burning continued till 1790 to be the punishment inflicted on women for treason high or petty
Which latter included not only the murder by a wife of her husband and the murder of a master or mistress by a servant but also several offences against the coin
Burning in such cases was abolished by 30 Geo 3 c 48
In practice women were strangled before they were burnt this however de pended on the executioner
In one notorious case a woman was actually burnt alive for murdering her husband the execu tioner being afraid to strangle her because he was caught by the fire
In the reign of George II an act was passed which was intended to make the punishment for murder more severe than the punishment for other capital crimes
This was 25 Geo 2 c 37 which provided that a person convicted of murder should be executed on the next day but one after his sentence unless he was tried on a Friday in which case he was to be hanged on the Monday
He was to be fed on bread and water in the interval and his body after death was either to be dissected or to be hung in chains
The judge however had power to respite or to remit these special severities
Under this act murderers were usually anato mized but sometimes gibbeted
By the 2  3 Will 4 c 7 section 16 for the regulation of schools of anatomy it was enact ed that the bodies of murderers should no longer be anato mized but that the sentence should direct that they should either be hung in chains or a buried in the prison
Several persons were gibbeted under this act
542 These provisions distinguish English law in a marked manner from the continental laws down to the end of the last cen tury
In most parts of the continent breaking on the wheel burning in some cases quartering alive and tearing with red hot pincers were in use as well as simpler forms of death
History of the Criminal Law of England by Stephen Ch
XIII p 477 478
Through out the reign of Henry the Eighth there were no fewer than two thousand executions a year
As the stress on the value of property increased the net was widened
Not alone murderers and traitors but robbers coiners heretics and witches were sent to their death
The shooting of a rabbit the forgery of a birth certificate the theft of a pocket handkerchief the adoption of a disguise the damag ing of a public property were also included in the list of death sentence
In 1814 a man was hanged at Chelmsford for cutting down a cherry tree
The public hangings in England continued until well into the nineteenth century
There were public executions with a large number of people watching
On January 22 1829 Willi an Burke was hanged at Edinburgh and the crowd was great beyond all former precedent
The last person to be hanged publicly in England was Michael Marett who was executed at Newgate on May 26 1868
As time went past the list of death sentence crimes was rapidly reduced and in 1950 it was confined for four crimes only to wit 1 murder 2 treason 3 piracy with violence and 4 setting fire to arsenals and dockyards
Later this was also abolished
GR Scott The History of Capital Punishment 38 66 1950
What happened in the United States It will be noticed that in the United States the accused has a constitutional right to be tried by a Jury as provided under 6th Amend ment
The accused has a right not to be subjected to cruel and unusual punishment as mandated under 8th Amendment
In Furman some Judges took the view that death sentence was unacceptable to the evolving standards of decency of the American people
But the American people rejected that view
Since then 35 States have re enacted laws providing for the death sentence for murder of suitably altering the provi sions to comply with Furman
What do we have here The representatives of our people are cognizant of the contemporary social needs
The legisla tive amendments brought about from time to time are indica tive of their awareness
Sub sec
5 of sec
367 of the Code of the Criminal Procedure 543 1898 as it stood prior to its amendment by Act 25 of 1955 provided If the accused is convicted of an offence punishable with death and the court sentences to any punishment other than death the court shall in its judgment state the reasons why sentence of death was not passed
 This provision laid down that if an accused was convict ed of an offence punishable with death the imposition of death sentence was the rule and the awarding of a lesser sentence was an exception
The court had to state the rea sons for not passing the sentence of death
There was a change by the amending Act 26 of 1955 which came into force with effect from January 1 1956
The above sub section was deleted and it was left to the discretion of the court in each case to pass a sentence of death or life imprisonment
In 1973 there was again a reshaping of the provision regard ing the death penalty
In the Code of Criminal Procedure 1973 sec
3543 was inserted in these terms When the conviction is for an offence punishable with death or in the alternative with the imprisonment for life or imprisonment for a term of years the judgment shall state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence
 It is now obligatory for the court to state reasons for the sentence awarded for the offence of murder
The court cannot award death sentence without giving special reasons
As earlier noticed that death sentence Could be awarded only in exceptional cases and not in the usual run of murders
We have got just six offences carrying death penalty and that too as an alternate sentence Sections 120B 121 132 302307 and 396 IPC
This is the need and notion of the present day society
Tomorrow s society and the atmosphere in which they live may be quite different
They may not have rapist murderers like Ranga and Billa
They may not have any merciless killing and bride burning They may have more respect for each other life
They may be free from criminalisation of politics and elimination of political leaders by muscle power
There then the penal law cannot remain isolated and untouched
It will be profoundly influenced by philosophy prevailing
Time may reach for the representatives of people to consider that death penalty even as an alternate sentence for murder is uncalled for and unnecessary
There is 544 nothing in our Constitution to preclude them from deleting that alternate sentence
The crusade against capital punish ment may therefore go on elsewhere and not in this Court
Let me now turn to the pivotal question which I have referred at the beginning of the judgment
The question is whether the sentence of life imprisonment should be substi tuted on account of time factor alone however right and valid and death sentence was at the time when it was award ed
The arguments for the petitioners primarily rested on the common area of agreement in Vaitheeswaran and Sher Singh cases on the implication of Article 21
The accepted princi ple according to counsel is that prolonged delay in execu tion would be unjust unfair and unreasonable
It would be inhuman and dehumanising to keep the condemned person for a long period
It offends the constitutional safeguards under Article 21
Article 21 of the Constitution mandates the state that no person shah be deprived of his life or personal liberty except according to the procedure established by law
The scope and content of this Article has been the subject matter of intensive examination in the recent decisions of this Court
I do not want to add to the length of this judg ment by recapitulating all those decisions in detail
I may only highlight some of the observations which are relevant to the present case
In Maneka Gandhi vs Union of India 1978 1 SCC 248 this Court gave a new dimension to Article 21
The seven Judge bench held that a statute which merely prescribes some kind of procedure for depriving a person of his life or personal liberty cannot meet the requirements of Article 21
Bhagwati J as he then was while explaining the nature and requirement of procedure under Article 21 observed at 283 We must reiterate here what was pointed out by the majority in EP Rayappa vs State of Tamil Nadu 1974 3
SCR 348  namely that from a posi tivistic point of view equally is antithetic to arbitrariness
In fact equality and arbi trariness are sworn enemies one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch
Where an act is arbitrary it is implicit in it that it is unequal both accord ing to political logic and constitutional law and is therefore violative of Article 14
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment
The principle of reasonableness which 545 legally as well as philosophically is an essential element of equality or non arbi trariness pervades Article 14 like a brooding omni presence and the procedure contemplated by Article 21 must answer the test of reasona bleness in order to be in conformity with
Article 14
It must be right and just and fair and not arbitrary fanciful or oppres sive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied
 If one prefers to go yet further back the procedural fairness in the defence of liberties was insisted upon even in 1952
The State of West Bengal vs Anwar Ali  Bose J remarked at 367 The question with which I charge myself is can fair minded reasonable unbiased and resolute men who are not swayed by emotion or prejudice regard this with equa nimity and call it reasonable just and fair regard it as that  equal treatment and protection in the defence of liberties which is expected of a sovereign democratic repub lic in the conditions which obtain in India today I have but one answer to that
On that short and simple ground I would decide this case and hold the Act bad
 In Bachan Singh case Sarkaria J affirming this view said at 730 No person shall be deprived of his life br personal liberty except according to fair just and reasonable procedure estab lished by valid law In Mithu vs State of Punjab  Chandra chud
CJ said at 284   that the last word on the question of justice and fairness does not rest with the legislature
Just as reasonableness of restrictions under clauses 2 to 6 of Article 19 is the for the courts to determine so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair just and reasonable In Sher Singh vs State of Punjab 1983 2 SCC 582 Chandrachud CJ again explained at 593 546 The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said
So long as life lasts so long shall it be the duty and endea vour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation
Therefore Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the impo sition of that sentence and its execution
The essence of the matter is that all procedure no matter the stage must be fair just and reasonable Article 21 thus received a creative connotation
It demands that any procedure which takes away the life and liberty of persons must be reasonable just and fair
The procedural fairness is required to be observed at every stage and till the last breath of the life
In Vaitheeswaran the court thought that the delay of two years would make it unreasonable under Article 21 to execute death sentence
The court did not attach importance to the cause of delay
The Cause of delay was immaterial
The accused himself may be responsible for the delay
The court said that the appropriate relief would be to vacate the death sentence and substitute life imprisonment instead
The learned counsel for the petitioners argued that if two years period of delay set out in Vaitheeswaran does not present favourably we may fix any other period but we should not disturb the basis of the decision
He invited our attention to a number of authorities where courts have awarded life imprisonment on the ground of delay in disposal of cases
In Vivian Rodrick vs The State of West Bengal  six years delay was considered sufficient for impos ing a lesser sentence of imprisonment for life
In State of UP vs Paras Nath Singh  Ors  the Court while reversing the order of acquittal awarded life imprisonment on the ground that the accused was under sen tence of death till he was acquitted by the High Court
Similar was the view taken in State of Bihar vs Pashupati Singh   State of UP vs Suresh at 643 and State of UP vs Sahai In State of UPv Suresh the accused was given life imprisonment in view of the fact that seven years had elapsed after the date of murder
In Ram Adhar vs State of UP at 777 the 547 delay of six years from the date of occurrence was held sufficient to commute the sentence of death to life impris onment
The court also observed that the accused was not responsible in any manner for the lapse of time that has occurred
In Nethi Sreeramulu vs State of A P 14 the Court while disposing of the appeal in 1973 commuted the sentence of death given in 1971 to life imprisonment
In State of UPv Lalla Singh  Ors six years delay from the date of judgment of the trial court was a consideration for not giving the death sentence
In Sadhu Singh vs State of UP about three years and seven months during which the accused was under spectre of death sentence was one of the relevant factors to reduce the sentence to life imprisonment
There are equally other decisions where in spite of the delay in disposal of the case the Court has awarded the death sentence
In Nachhittar Singh vs State of Punjab  the court refused to consider the question of delay as a mitigating circumstances
In Maghar Sing vs State of Punjab 19751 4 SCC 234 the court said that delay does not appear to be good ground to commute to life impris onment in view of the pre planned cold blooded and dastard ly murder committed by the accused
In Lajar Mashi vs State of UP  the court while confirming the death sentence observed at 809 The value of such delay as a miti gating factor depends upon the features of a particular case
It cannot be divorced from the diabolical circumstances of the crime itself which in the instant case fully justify the award of capital sentence for the murder of the deceased
We therefore uphold the award of the capital sentence to the appellant and dismiss his appeal
 All these decisions are of little use to determine the constitutionality of execution of the death sentence on the relevance of delay
These decisions relate to the sentencing discretion of courts with which we are not concerned
We are concerned with the right of the accused to demand life imprisonment after the final verdict of death sentence with every justification to impose it
The demand for life imprisonment herein as solely based on the ground of prolonged delay in the execution
The delay which is sought 548 tO be relied upon by the accused consists of two parts
The first part covers the time taken in the judicial proceed ings
It is the time that the parties have spent for trial appeal further appeal and review
The second part takes into fold the time utilized by the executive in the exercise of its prerogative clemency
I start with the first part of the delay
In Vaitheeswa ran this part of the delay was expressly taken into consid eration
It was observed that the period of two years as prolonged detention would include the time necessary for appeal from the sentence of death and consideration of reprieve
In Sher Singh this period has not been accepted as good measure
The court said that the fixation of time limit of two years did not accord with the common experience of time normally consumed by the litigative process and the proceedings before the Government
Mr Parasaran learned Attorney General has altogether a different approach and in my opinion very rightly
He argued that the time spent by the courts in judicial proceedings was intended to ensure a fair trial to the accused and cannot be relied upon by the same accused to impeach the execution of the death sentence
The relevant provisions in the Indian Penal Code the Criminal Procedure Code the Evidence Act and the Rules made by the High Courts and the Supreme Court governing the trial appeal execution of sentence etc were all highlighted
According to learned Attorney these provisions are meant to examine the guilt or innocence of the accused and to have an appropriate sentence commensurate with the gravity of the crime
They constitute reasonable procedure established by law
I entirely agree
The time taken in the judicial pro ceedings by way of trial and appeal was for the benefit of the accused
It was intended to ensure a fair trial to the accused and to avoid hurry up justice
The time is spent in the public interest for proper administration of justice
If there is inordinate delay in disposal of the case the trial court while sentencing or the appellate court while dispos ing of the appeal may consider the delay and the cause thereof along with other circumstances
The court before sentencing is bound to hear the parties and take into ac count every circumstance for and against the accused
If the court awards death sentence notwithstanding the delay in disposal of the case there cannot be a second look at the sentence save by way of review
There cannot be a second trial on the validity of sentence based on Article 21
The execution which is impugned is execution of a judgment and not apart from judgment
If the judgment 549 with the sentence awarded is valid and binding it falls to be executed in accordance with law since it is a part of the procedure established by law
Therefore if the delay in disposal of the case is not a mitigating circumstance for lesser sentence it would be in my opinion wholly inappro priate to fall back upon the same delay to impeach the execution
If the delay in passing the sentence render the execu tion unconstitutional the delay subsequent thereof cannot also render it unconstitutional
Much less any fixed period of delay could be held to make the sentence inexecutable
It would be arbitrary to fix any period of limitation for execution on the ground that it would be a denial of fair ness in procedure under Article 21
With respect I am unable to agree with the view taken in Vatheeswaram case on this aspect
Under Article 72 of the Constitution the President shall have the power to grant pardons deprives respites or remissions of punishment or to suspend remit or commute the sentence of any person convicted in an offence
Under Article 161 of the Constitution similar is the power of the Governor to give relief to any person convicted of any offence against any law relating to a matter to which the executive power of the State extends
The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made
It may also depend upon the number of mercy petitions sub mitted by or on behalf of the accused
The Court therefore cannot prescribe a time limit for disposal
Of even for mercy petitions
It is however necessary to point out that Article 21 is relevant at all stages
This Court has emphasized that the speedy trial in criminal cases though not a specific fundamental right is implicit in the broad sweep and con tent of Article 21
See Hussainara Khatoon vs The State of Bihar 1979 3 SCR 169 and  Speedy trial is a part of one s fundamental right to life and liberty
See Kadra Pahadiya vs State of Bihar and This principle in my opinion is no less important for disposal of mercy petition
It has been uni versally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture
He may be provided with amenities of ordinary inmates in the prison as stated in Sunil Batra vs Delhi Administration  but nobody could succeed in giving him peace of mind
550 Chita Chinta Dwayoormadhya Chinta tatra gariyasi Chita Dahati Nirjivam Chinta dahati Sajeevakam
As between funeral fire and mental worry it is the latter which is more devastating for funeral fire bums only the dead body while the mental worry burns the living One
This mental torment may become acute when the judicial verdict is finally set against the accused
Earlier to it there was every reason for him to hope for acquittal
That hope is extinguished after the final verdict
If therefore there is inordinate delay in execution the condemned pris oner is entitled to come to the court requesting to examine whether it is just and fair to allow the sentence of death to be executed
What should be done by the Court is the next point for consideration
It is necessary to emphasise that the juris diction of the Court at this stage is extremely limited
If the Court wants to have a look at the grievance as to delay it is needless to state that there should not be any delay either in listing or in disposal of the matter
The person who complains about the delay in the execution should not be put to further delay
The matter therefore must be expedi tiously and on top priority basis disposed of
The Court while examining the matter for the reasons already stated cannot take into account the time utilised in the judicial proceedings up to the final verdict
The Court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under Article 226 or under Article 32 of the Constitution after the final judgment affirming the conviction and sentence
The Court may only consider whether there was undue long delay in disposing of mercy petition whether the State was guilty of dilatory conduct and whether the delay was for no reason at all
The inordinate delay may be a significant factor but that by itself cannot render the execution unconstitutional
Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself
The Court has still to consider as observed in Sher Singh case at 596 The nature of the offence the diverse circum stances attendant upon it its impact upon the contemporary society and the question whether the motivation and pattern of 551 the crime are such as are likely to lead to its repetition if the death sentence is vacated are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed
 The last contention urged for the petitioners that the accused should not be executed if he was since improved is unavailable since it seeks to substitute a new procedure which the Code does not provide for
We have already considered all these cases in the light of these principles and disposed them of by our earlier unanimous order


Summary:
The appellant was inducted as a tenant in the building in question under a document of lease
Since the deed was not executed in accordance with the requirements of law it remained inoperative
After the lease period the owner instituted a suit for eviction of the appellant and for a decree for arrears of rent
During the pendency of the suit the provisions of the Bihar Rent Act were extended to the area and as such the prayer for withdrawal of the relief for eviction was allowed with leave to file a fresh suit
However decree for arrears of rent was passed
Thereafter a fresh suit was filed
The Trial Court decreed the suit on both the grounds of personal necessity and default in pay ment of rent
On appeal the Subordinate Judge reversed the finding on the question of bona fide personal necessity but affirmed the decree on the ground of default
The High Court on appeal maintained the decree
The present appeal by special leave is against the High Court s judgment
On behalf of the appellant it was contended that non payment of rent when the Bihar Rent Act was not applicable to the area is not relevant and so it could not be legiti mately made the basis for the decree of eviction
It was submitted on behalf of the respondent that even independent of the Bihar Rent Act the appellant was under a duty to regularly pay the monthly rent and for the default he must be presumed to be made liable for eviction under Section 111d of the Act
Allowing this appeal HELD 1
There is no manner of doubt that the Act was applied to the area concerned on 1421970 with prospective effect
The ques 553 tion whether the Legislature intended to include previous default of the tenant in payment of rent within the grounds for eviction has to be answered by construing the language of the relevant provisions in the Bihar Rent Act
555C D 2
Ordinarily where a tenant offers the rent which is refused by the landlord without any justifiable reason the tenant is held to have fully performed his duty
Under the Bihar Rent Act however the position is a little different
Even on the refusal by the landlord to accept rent lawfully offered by the tenant the tenant is under a further duty as mentioned in section 131 to remit such rent by postal money order to the landlord
Where a bona fide doubt arises as to the person who is entitled to receive rent the tenant is permitted by section 132 to deposit the rent in the prescribed manner
The latter part of section 111d quoted above deals with cases attracting section 13
The result is that if a tenant has made a proper offer to pay the rent and the landlord has unreasonably refused to accept it the tenant cannot escape the liability of eviction under clause d unless he proves that he had further remitted the rent by postal money order
This position is fully settled
If the situation is analysed in this light it will be seen that clause d can be held to apply only where section 13 of the Bihar Rent Act is attracted
If section 13 cannot be applied to a particular situation clause d also would not apply
Section 13 could not obviously be applicable before the Act was extended to the area in ques tion
Consequently it must be held that the default for the earlier period cannot be the basis for a decree of eviction under section 111d
557G H 558A C KC Jain vs
BS Grewal  Ors  distinguished
Since the question is dependent on an appraisal of the evidence led by the parties the case should be remitted to the first appellant court for the decision on the ques tion whether the landlord has proved the tenant s default in payment of rent for the period from December 1973 to April 1974
If the Subordinate Judge comes to the conclusion that the tenant did default within the meaning of section 111d of the Act for two months or more during this period he would decree the suit otherwise the suit would be dismissed
559B C