TMI Blog1989 (2) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. - - - Dated:- 7-2-1989 - OZA, G.L., SHARMA, L.M., DUTT, M.M., SINGH, K.N. AND SHETTY, K.J., JJ. R.K. Jain, Rangarajan, Mrs. Urmila Sirur, Mohd. Naseem, Rakesh K. Khanna, P.K. Jain, Mukul Mudgal, Sanjay Parikh, B.P. Singh, P. Krishna Rao, B.K. Prasad, Ms. Malini Poduwal, Lalit Kumar Gupta, Manoj Swarup, Harish Salve, Rajiv Garg, Rajiv Shakdhar, N.D. Garg, L.K. Gupta (Amicus-curiae), M. Veerappa and Dalveer Bhandari for the Petitioner K. Parasaran, Attorney General, B. Datta, Additional Solicitor General, V.C. Mahajan. T.U. Mehta, Anand Prakash, Ms. A Subhashini, A.K. Srivastava, S.K. Bhattacharya, M.N.Shroff, Ms. Sushma Ralhan. Mahabir Singh, AV. Rangam and R.S. Suri, A.K. Goel, Ajit Pudissery and Mrs. Jayamala Singh for the Respondent JUDGEMENT OZA, J. These matters came up before us because of the conflict in the two decisions of this Court:(i) T.V. Vatheeswaran v. State of Tamil Nadu, [1983] 2 SCR 348; Sher Singh Others v. The State of Punjab, [1983] 2 SCR 582 and observations in the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8. In Vatheeswaran's case, a Bench of two Judges of this Court held that two years del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 imprisonment 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. etc. v. State of Punjab etc. etc., [1983] 1 SCR 145 constitutionality of sentence of death has been upheld by this Court. Learned counsel has at length referred to the opinion of Hon. Mr. Justice P.N. Bhagwati, as he then was, which is the minority opinion in Bachan Singh's case. In his opinion Justice P.N. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary 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 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 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 another capital offences were before the Parliament and presumably considered by it when in 1972-73, it took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od 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. P.C. 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 necessary 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 afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 v. State of Punjab, [1983] 3 SCC 470 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 individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh's case: (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (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 sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mental torture it amounts to and it is in this background also that the parties argued at length about the starting point which should be considered for computing delay in execution of the sentence. On the one hand according to the petitioners the mental torture commences when the trial court i.e. 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 appeals are heard at length and it was therefore contended that the delay in execution of the sentence really could be conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmation 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 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 Sessions 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 instance of the advocates appearing for defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 expeditiously. 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 subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 366(2) of the Cr.P.C. 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-s. (2) of S.366 is to make available the prisoner when the sentence is required 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 sentence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstances 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 circumstances 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused. 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 carrying mandatory death penalty. Section 303 IPC carrying the mandatory punishment has been declared unconstitutional in Mithu v. State of Punjab, [1983] 2 SCC 277. 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 and/or the Governor were also rejected. They have now moved writ petitions under Article 32 of the Constitution. They are not seeking to overturn the death sentence on the ground that the Court has illegally inflicted it. Obviously, 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 thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 protection of Article 21 of the Constitution. We accordingly qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 constitutional 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 special bench of seven learned judges. In A.R. Antulay v.R.S. Nayak, AIR 1988 SC 1531, 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 enunciated in Young v. Bristol Aeroplace Ltd. (supra) and followed by Justice Chinnappa Reddy in Javed Ahmad A bdul Hamid Pawla v. State of Maharashtra, [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 punishment or philosophy is good for our people. While examining constitutional questions, we must never forget Marshall'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 underpinnings about the purposes of punishment. It includes among others deterfence, retribution, protecting persons, punishing guilty and acquitting the innocent. Among these objectives deterfence and retribution are prominent. Retribution is often confused with revenge, but there are distinct differences. Retribution embodies the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the rest of their lives (The History of corporal Punishment--by G.R. 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 V(1) p(1). 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 legislations providing punishment of death in the reign of George IV. All felonies except petty larceny and mayhem were theoretically 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 sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. On January 22, 1829, Willian 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. (See. G.R. 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 Amendment. 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 provisions to comply with Furman. What do we have here? The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olated 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 nothing in our Constitution to preclude them from deleting that alternate sentence. The crusade against capital punishment 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 substituted on account of time factor alone, however, right and valid and death sentence was at the time when it was awarded. 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 principle according to counsel, is that prolonged delay in execution 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with equanimity 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 republic 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 established by valid law. In Mithu v. State of Punjab, [1983] 2 SCC 277 Chandrachud. C.J., 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 v. State of Punjab, [1983] 2 SCC 582 Chandrachud, C.J. again explained (at 593): The horizons of Article 21 are ever widening and the final word on its conspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sentence of death to life imprisonment. The court also observed that the accused was not responsible in any manner for the lapse of time that has occurred. In Nethi Sreeramulu v. State of A. P., [1974] 3 SCC 3 14 the Court while disposing of the appeal in 1973 commuted the sentence of death given in 1971 to life imprisonment. In State of U.P.v. Lalla Singh Ors., [1978] 1 SCC 142 six years delay from the date of judgment of the trial court was a consideration for not giving the death sentence. In Sadhu Singh v. State of U.P., [1978] 4 SCC 428 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 v. State of Punjab, [1975] 3 SCC 266, the court refused to consider the question of delay as a mitigating circumstances. In Maghar Sing v. State of Punjab, [19751 4 SCC 234, the court said that delay does not appear to be good ground to commute to life imprisonment in view of the pre-planned, cold-blooded and dastardl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry-up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sentencing or the appellate court while disposing of the appeal may consider the delay and the cause thereof along with other circumstances. The court before sentencing is bound to hear the parties and take into account every circumstance for and against the accused. If the court awards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence save by way of review. There cannot be a second trial on the validity of sentence based on Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 v. Delhi Administration, [1978] 4 SCC 491, 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 prisoner 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 jurisdiction of the Court at this stage is extremely limited. If the Court wants to have a look at the grievan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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