Judgment Case ID: 6136

Judgment:
Writ Petition (Crimi nal) No. 2 16 of 1989 (Under Article 32 of the Constitution of India) Surya Kant and M.C. Mehta for the Petitioner. Anil Dev Singh	 Girish Chandra	 Ms. A. Subhashini and Dalveer Bhandari for the Respondent. 777 The Judgment of the Court was delivered by SABYASACHI MUKHARJI	 J. This is a petition under Article 32 of the Constitution filed by one Madhu Mehta	 who is the National Convenor of Hindustani Andolan. This petition seeks a writ of Habeas Corpus or an appropriate direction with regard to one Shri Gyasi Ram	 S/o Shri Param aged above 60 years	 who	 it is claimed	 has been waiting decision on his Mercy Petition pending before the President of India for about 8 or 9 years. The said Gyasi Ram was at all relevant time lodged in "DEATH CELL	 CENTRAL JAIL" JHANSI having been convicted for an offence punishable under section 302 of Indian Penal Code and sentenced to death by the learned Sessions Judge	 Jhansi on October 19	 1978. It appears that Gyasi Ram was convicted and sentenced to death by the learned Sessions Judge	 Jhansi on 19th October	 1978 for committing murder	 which has been described by the Under Secretary (Judicial)	 Ministry of Home Affairs	 Govt. of India	 as the 'cold blooded murder ' of a Government servant	 namely	 Bhagwan Singh	 who was the resident of Mauranipur Tehsil	 in District Jhansi	 Uttar Pradesh. There then were arrears of land revenue due from Gyasi Ram and also one Mool Chand. For the purpose of realising the said arrears of land revenue	 their property was attached by Amin Bhagwan Singh and the same was put to sale by auction. The auction took place on 26th December	 1976 and after the auction while the said Amin was returning along with his Peon Sripat from village Kakwara after delivering the sale certificate to the auction purchaser	 they were way laid by Daya Ram (son of Mool Chand) and Gyasi Ram	 the convicts involved in this case. In the evidence	 it was stated that Daya Ram who was armed with pistol fired at the deceased Amin Bhagwan Singh who fell down from his cycle. While Daya Ram held down Amin Bhagwan Singh	 Gyasi Ram	 the person about whom this peti tion is concerned	 cut Bhagwan Singh 's throat with the sword he was carrying and inflicted other injuries also. After this incident	 both Daya Ram and Gyasi Ram	 it has been stated	 escaped. Gyasi Ram was	 however	 arrested	 tried	 convicted and sentenced to death	 as mentioned hereinbefore. The death sentence was passed on Gyasi Ram by the learned Sessions Judge on 19th October	 1976. The Allahabad High Court confirmed this death sentenced on 28th February	 1979. This Court dismissed his Criminal Appeal No. 362/79 on 17th March	 1981. Mercy Petition was filed by the wife of the convicted to the President of India on 18th December	 1981. It appears that Mercy Petition has still not been disposed of. Daya Ram had absconded and could not be put on trial along with Gyasi Ram. It appears further that Gyasi Ram 's Mercy Petitions dated 6th October	 778 1981 and 26th November	 1981 were rejected by the Governor of Uttar Pradesh on the 26th November	 1981 and were re ceived in the Ministry of Home Affairs on the 5th December	 1981 for the consideration of the President of India. From the affidavit filed on behalf of the Government of India	 it appears that after processing the case	 the matter was put up before the President of India on 21st April	 1983 for his orders on the Mercy Petitions and that the President after examining the case file	 returned the file on 30th July	 1983 for further consideration. While the Ministry of Home Affairs was processing the case of Gyasi Ram further	 the intimation was received from this Court on 13th November	 1984 that Daya Ram	 son of Mool Chand had also filed a Special Leave Petition against the judgment date 17th Octo ber	 1984 of the Allahabad High Court by which the sentence of death was confirmed on him. It appears from the order of this Court dated 18th February	 1985 dismissing Daya Ram 's Special Leave Petition that this Daya Ram was the same person who was Gyasi Ram 's partner in the crime as mentioned hereinbefore. Subsequently	 .two Mercy Petitions were filed on behalf of Daya Ram which were forwarded for the consider ation of the Governor of Uttar Pradesh in the first instance by the Ministry of Home Affairs dated 9th April	 1984 and 9th August	 1985 respectively. These still remain undisposed of. It has been asserted on behalf of the Government of India in the half yearly return dated 8th August	 1985 submitted by the Government of Uttar Pradesh that it was reported that they had received a Mercy Petition from Daya Ram. Thereafter	 in successive half yearly reports	 the last of these being dated 16th January	 1989	 the State Govern ment had been saying that the Mercy Petition of Daya Ram was still under consideration. It is the version of the Govern ment that in view of the implications of Daya Ram and Gyasi Ram in the same crime	 it was considered	 it is stated	 that the decision on the Mercy Petition of Daya Ram by the Gover nor of Uttar Pradesh would have a direct bearing on the consideration of the Mercy Petition of Gyasi Ram by the President of India. It was	 accordingly	 felt	 so it is .asserted	 that it was desirable to await the decision of the Governor of Uttar Pradesh on Daya Ram 's Mercy Petition. But it was only on 18th January	 1989 that by a Wireless Message	 the Central Government asked the State Government to let the Ministry of Home Affairs know the decision of the Governor on Daya Ram 's Mercy Petition and to send it immedi ately for consideration of the President of India so that the cases of Gyasi Ram and Daya Ram could be submitted together to the President. But the Government did not move. It is further stated that in reply to the Wireless Message of 18th January	 1989 the State Government through its letter dated 1st February	 1989 intimated that the Mercy Petition of 779 Daya Ram was still under consideration. Thereafter	 there was another request to the Chief Secretary by demi official letter of the Ministry of Home Affairs dated 3rd February	 1989 to expedite consideration of Daya Ram 's Mercy Petition. And upon this	 it is stated that by a telex message dated 15th March	 1989	 the State Government had intimated that the Governor of Uttar Pradesh had rejected the Mercy Peti tion and that formal letter of State Government would fol low. It was stated on behalf of the Government of India that Mercy Petition of Daya Ram was received by the Ministry of Home Affairs on 21st March	 1989 along with the letter. In the affidavit	 it is stated that after collecting certain further information from the Supreme Court Registry	 the Ministry of Home Affairs "was now ready to process the Mercy Petitions of Gyasi Ram and Daya Ram and submit the same to the President of India for consideration". The deponent was good enough to state in the affidavit that the delay factor would be kept in view while taking a final decision in the case of Gyasi Ram and he was fully aware of the agony of Gyasi Ram and members of his family. It was stated that in view of the reasons stated above	 it was not possible to avoid the delay. The learned District and Sessions Judge	 Jhansi had	 in the meantime	 visited the said convict Gyasi Ram in jail on 22nd May	 1988 and had sent a report to the Inspector Gener al of Prisons stating "Gyasi 's mental state is such that he might commit suicide by hanging his head on the iron grill of his cell if a decision on his petition is not taken soon. If he is to be hanged	 it should be done without any delay or he should be released". The Inspector General 's Office further sent an official to Delhi to expedite the case. Thereafter	 this petition was filed for the condemned pris oner. Gyasi Ram	 until the orders of this Court passed in these proceedings on the 3rd May	 1989	 was kept in the Death Cell and it is only pursuant to the orders of this Court that the prisoner was allowed to stay in the Ordinary Cell during the day time. The petitioner moved this Court on 11th April	 1989 and the notice was issued returnable on 19th April	 1989. Time was taken to file affidavit and the order of this Court dated 3rd May	 1989 was passed. The matter was adjourned for three months. Affidavits have been filed but his Mercy Petition still remains undisposed of. The question is: what is to be done? This question of delay in these matters has been examined by this Court from time to time	 and how far delay in execution of death sentence necessitates the commutation of the death sentence or re lease of the condemned prisoner	 has been a matter of some controversy and debate. In T.V. Vatheeswaran vs State of Tamil Nadu	 	 a bench of two learned Judges considered this 780 aspect. Speaking for this Court	 Chinnappa Reddy	 J. stated in that decision that Article 21 of the Constitution enjoins that any procedure	 which deprives a person of his life or liberty must be just	 fair and reasonable. It implies humane conditions of detention	 preventive or punitive. 'Procedure established by law ' does not end with the pronouncement of sentence; it includes the carrying out of sentence. Pro longed detention to await the execution of a sentence of death is an unjust	 unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death. Reddy	 J. was of the view that the sentence of death is one thing; sentence of death followed by lengthy impris onment prior to execution is another. A period of anguish and suffering is an inevitable consequence of sentence of death	 but a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not. And it was no answer to say that the man would struggle to stay alive. It was	 therefore	 found in that case that a delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death. This Court did so and substituted the sentence of imprisonment in that case. That decision was rendered on 16th February	 1983. The validity of that deci sion did not last long. On 24th March	 1983	 in Sher Singh & Ors. vs The State of Punjab	 ; 	 a bench of three learned Judges of this Court held that the prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed. But no hard and fast rule 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 ' can be laid down as has been done in Vatheeswaran 's case (supra). It is not necessary	 therefore	 to go into the aspect of this matter any more. Chief Justice Chandrachud observed that a self imposed rule should be followed by the executive authority rigorously that every mercy petition should be disposed of within a period of three months from the date on which it was received. Long and interminable delay in the disposal of these petitions	 it was observed	 are serious hurdles in the dispensation of justice and indeed	 such delays tend to shake the confidence of the people in the very system of justice. The learned Chief Justice stated that undoubtedly	 the executive has the power	 in appropri ate cases	 to act under the aforesaid provisions but	 all exercise of power is preconditioned by the duty to be fair and quick. Delay defeats justice	 it was observed. In this background	 we have to consider the reasons given in the affidavit in this case. We have set out the 781 reasons advanced on behalf of the Government. They are self explanatory. These do not	 in our opinion	 indicate any justifiable ground for keeping the Mercy Petitions of Daya Ram and Gyasi Ram pending for such a long time. Indeed	 it is not disputed from the affidavit of the Under Secretary	 Ministry of Home Affairs	 Government of India that in the half yearly return dated 8th October	 1985 and thereafter in the successive half yearly returns of the Uttar Pradesh Government upto 16th January	 1989 year after year	 the Mercy Petitions of Daya Ram remained unattended and undis posed of and consequently the Mercy Petition made to the President of India by Gyasi Ram was also undisposed. The time and the manner in which the Mercy Petition has been dealt with in this case in respect of Gyasi Ram make sad reading and speak of the deplorable lack of speed and promp titude which in these matters should be there. In the mean time	 there is no denying the fact that Gyasi Ram has suf fered a great deal of mental pain and agony. His condition has been described by the learned Sessions Judge as indicat ed hereinbefore. Whether death sentence is the appropriate punishment for the crime of murder	 cold blooded in certain cases	 is another debate. This Court in Bachan Singh vs State of Punjab; 	 at page 221 of the report	 observed as follows: "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 302	 IPC on the ground of reasonable ness 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 antithetical 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 death penalty in the impugned provision is totally devoid of reason and purpose. If	 notwithstanding the view of Abolitionists to the contrary	 a very large segment of people	 the world over	 including sociologists	 legislators	 jurists	 judges and administrators still firmly believe in the worth and necessity of capital punish ment for the protection of society	 if in the perspective of prevailing crime conditions in India	 contemporary public 782 opinion channelised through the people 's representatives in Parliament	 has repeatedly in the last three decades	 rejected all at tempts	 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 penalty as punishment for murder	 under the Indian Penal Code	 if Thirty fifth Report and subsequent reports of the Law Commission suggesting retention of death penalty	 and recommending revision of the Criminal Procedure Code and the insertion of the new sections 235(2) and 354(3) in that Code providing for pre sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972 73 it look up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure	 1973	 it is not possible to hold that the provision of death penalty as an alternative punishment for murder	 in section 302	 Penal Code is unreasonable and not in the public interest. We would	 there fore	 conclude that the impugned provision in section 302	 violates neither the letter nor the ethos of Article 19. " In that decision	 Bhagwati	 J. (as the learned Chief Justice then was)	 dissented. He held that death sentence was bad morally as well as constitutionally. It is no longer necessary in view of the majority judgment to deal with these views in detail. This aspect was examined in several cases and a bench of five learned Judges considered this question again in Smt. Triveniben vs State of Gujarat	 ; 	 where Oza	 J. speaking for the majority analysed the trend and observed at p. 688 that it was not necessary to go into the jurisprudential theories of punish ment deterrent or retributive in view of what has been laid down in Bachan Singh 's case (supra) with which learned Judges therein agreed. It is well settled now that undue long delay in execution of the sentence of death would entitle the condemned person to approach this Court or to be approached under Article 32 of the Constitution	 but this Court would only examine the nature of delay caused and circumstances that ensued after sentence was finally con firmed by the judicial proces and will have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death. But the court is entitled and indeed obliged to 783 consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execu tion of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay can be considered to be decisive. It has been emphasised that Article 21 is relevant in all stages. Speedy trial in crimi nal cases though may not be fundamental right	 is implicit in the broad sweep and content of Article 21. Speedy trial is part of one 's fundamental right to life and liberty. This principle is no less important for disposal of mercy peti tion. 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. See the 'observations of Shetty	 J. in Triveniben 's case (supra) at p. 7 13 7 14 of the report	 where it has been observed that 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. In the instant case	 Gyasi Ram has suffered a great deal of mental agony for over eight years. It is not disputed that there has been long delay. We do not find reasons sufficiently commensurate to justify such long delay. The convict has suffered mental agony of living under the shadow of death for long	 far too long. He should not suffer that agony any longer. In the aforesaid facts and the circumstances of the case	 therefore	 we direct that the death sentence should not be carried out and the sentence imposed upon him be altered to imprisonment for life. We order accordingly. This Writ Petition is disposed of with the aforesaid direc tion. Y. Lal Petition dis posed of.

Summary:
This Petition under Article 32 of the Constitution has been filed by one Madhu Mehta National Convenor of Hindusta ni Andolan and a Social worker praying for a writ of Habeas Corpus or an appropriate direction in regard to one Gyasi Ram s/o Param aged 60 years	 who	 is stated to be waiting for a decision on his mercy petition by the President of India for about 8 or 9 years. He is stated to be confined in the Death Cell	 Central Jail	 Jhansi. The Circumstances under which the Writ Petition has been filed may be stated thus: Gyasi Ram was convicted under Section 302	 IPC. and sentenced to death by Sessions Judge	 Jhansi on October 19	 1978 for committing the Cold blooded murder of one Bhagwan Singh	 a Government servant. One Daya Ram was also associat ed with him for the Commission of the said Crime	 who had escaped. The death sentence awarded to Gyasi Ram was con firmed both by the High Court as also by this Court. On 18.12.1981	 the wife of Gyasi Ram filed a mercy Petition before the President of India which remained undis posed till the filing of this Writ Petition. It appears that mercy petitions presented by Gyasi Ram on 6.10.1981 and 26.11.1981 were rejected by the Governor of the State and were received in the Ministry of Home Affairs on 5.12.1981 for consideration by the President of India. On 21.4.1983	 the mercy petitions were put up for orders before the President	 and the President returned the file for further consideration. In the meantime	 information was received by the Govern ment from the Registry of this Court that Daya Ram s/o Moolchand had also 775 filed a Special Leave Petition against the Judgment dated 17.10.1984 of the Allahabad High Court whereby the death sentence imposed upon him was confirmed. Subsequently two mercy petitions were filed on his behalf which were forward ed to the Governor of the State for consideration in the first instance on 9.4.84 and 9.8.85	 which remained undis posed. In the Counter affidavit filed on behalf of the Union of India attempt has been made to explain this long delay occurred in the disposal of the mercy petitions the main reason	 amongst others	 that is attributed to the long delay in 'disposing of the mercy petitions of Gyasi Ram	 is the pendency of the mercy petitions filed by Daya Ram	 with the Governor of the State	 in regard to which the Union is stated to be in touch and Correspondence with the State Government. It is said that the decision on the mercy Peti tion moved on behalf of Daya Ram has a direct bearing to the decision to be taken on the petitions moved on behalf of Gyasi Ram. It was only on 15.3.89	 the Union Government had been informed on telex that the mercy petition of Daya Ram has since been disposed of. The Sessions Judge	 Jhansi had visited the said convict in Jail on 22.5.88 and had sent a report to the effect "Gyasi 's mental state is such that he might commit suicide by hanging his head on the iron grill of his ceil if a decision on his mercy petition is not taken soon. " Thereafter the instant Petition has been filed. The question that arose for determination by this Court	 in the facts and Circumstances	 of the case was whether by reason of the long delay in the execution of the death sentence awarded to Gyasi Ram	 he was entitled to any commutation	 alteration in his sentence in view of this Court 's Judgments in T.V. Vatheeswaran vs State of Tamil Nadu	 and Sher Singh & Ors. vs The State of Punjab	 ; Allowing the Writ Petition	 this Court	 HELD: Undue long delay in execution of the sentence of death would entitle the condemned person to approach this Court or to he approached under Article 32 of the Constitu tion but this Court would only examine the nature of delay caused and circumstances that ensued after the 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. [782G] The Court is entitled and indeed obliged to consider the question 776 of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should he carried out or should he altered into imprisonment for life. No fixed period of delay can he considered to be decisive. [782H 783A] Speedy trial in Criminal cases though may not he a fundamental right	 is implicit in the broad sweep and con tent of Article 21. Speedy trial is part of one 's fundamen tal right to life and liberty. [783B] There is no justifiable ground for keeping the mercy petition of Daya Ram and Gyasi Ram pending for such a long time. In the half yearly return dated 8th October	 1985	 and thereafter in the successive half yearly returns of the Uttar Pradesh Government upto 16th Jan.	 1989	 year after year	 the Mercy Petitions of Daya Ram were shown to have remained unattended and undisposed and consequently the Mercy Petition made to the President of India by Gyasi Ram was also undisposed. [781B] The time and the manner in which the Mercy Petition has been dealt with in this case in respect of Gyasi Ram make sad reading and speak of the deplorable lack of speed and promptitude which in these matters should he there. In the meantime	 there is no denying the fact that Gyasi Ram has suffered a great deal of mental pain and agony. [781C] The Convict has suffered mental agony of living under the shadow of death	 for long far too long. He should not suffer that agony any longer. [783D] The Court directed that the death sentence imposed on Gyasi Ram be altered to imprisonment for life. [783E] Bachan Singh vs State of Punjab	 and Smt. Triveniben vs State of Gujarat	 ; 	 referred to.