In The Supreme Court of India Criminal Appellate Jurisdiction Case No. Writ Petition (Criminal) no. 55 of 2013 Appellants Shatrughan Chauhan & anr. Respondent Union of India & ors. Date of Judgement Decided on 21 Jan, 2014 Bench Hon'ble Justice P. Sathasivam , Justice Ranjan Gogoi and Justice Shiva Kirti Singh
This Writ Petition was filed under Art 32 of the Constitution of India by the family members of two death convicts Suresh and Ramji. They were convicted for death sentence under Sec 302 of IPC . Their death sentence were confirmed by the Allahabad High Court and the Supreme Court. Then they filed Mercy Petitions addressed to the Governor and President of India.
Both these Mercy Petitions were rejected by the Governor and the President. The petitioners were not informed of this rejection by the authorities and there happened to be inordinate delay of 12 long years in considering and deciding the Mercy Petitions.
Then this Writ Petition was filed by the relatives of the convicts with a prayer to declare the execution of death sentence after the rejection of Mercy Petition as unconstitutional and to commute the death sentence.
The Court considered the facts and observed that undue and inordinate delay of 12 long years in execution of death sentence does certainly attribute to torture which indeed is violation of Art 21 and thereby entails as the ground for commutation of sentence. The Court then commuted the death sentence of Suresh and Ramji into imprisonment of life and also gave directions to be followed in execution of death sentence.
Mr. Shatrughan Chauhan and Mr. Mahinder Chauhan, family members of death convicts – Suresh and Ramji have filed Writ Petition (Crl.) No. 55 of 2013.
On 19.12.1997, the petitioners were convicted under Section 302 IPC for the murder of five family members of the first petitioner’s brother for which they were awarded death sentence. On 23.02.2000, the Allahabad High Court confirmed their conviction and death sentence and, subsequently Supreme Court dismissed their Criminal Appeal being No. 821 of 2000, vide judgment dated 02.03.2001. On 09.03.2001 and 29.04.2001, the first and the second petitioners herein filed mercy petitions respectively addressed to the Governor/President of India.
On 09.03.2001 and 29.04.2001, the first and the second petitioners herein filed mercy petitions
respectively addressed to the Governor/President of India. On 18.04.2001, Supreme Court dismissed the Review Petition (Crl.) being No. 416 of 2001 which was filed on 30.03.2001 On 18.12.2001, the Governor rejected the mercy petition after taking nine months’ time. On 22.01.2002 State of U.P informed Govt. of India that the Governor has rejected the petitioners’ mercy petition. Neither the petitioner nor their relatives were informed about the rejection.
On 04.05.2001, State of Uttar Pradesh wrote to the Government Advocate, District Varanasi asking for a copy of the trial court judgment, On 04.09.2001, the District Magistrate, Varanasi informed that it is not possible to get a copy of the trial court judgment as all the papers are lying in the Supreme Court. Moreover there were inordinate delay in sending the judgments of the trial court to the Govt. of India, and 12 months delay in sending information about the status of petitioners’ mercy petition to State of U.P. There was delay of nearly three years in furnishing information about the pending mercy petitions when the same was sought by Prison authorities of the U.P jail.
On 08.02.2013, the President rejected the mercy petitions. The petitioners had not received any written communication about this till the date and came to know about it only through news reports.
Therefore there is a total delay of 12 years and 2 months since filing of mercy petitioners till informing the petitioners about the rejection by the President.
Hence this writ petition was filed with a prayer to issue a writ of declaration declaring that execution of sentence of death pursuant to the rejection of the mercy petitions by the President is unconstitutional and to set aside the death sentence imposed upon them by commuting the same to imprisonment for life.
1. Whether the delay in execution would amount to violation of right to life under Art 21.
2. Whether the delay in execution alone would be sufficient ground for commutation of death sentence.
Arguments in favour of the Petitioners
The arguments advanced by the petitioners are as follows:
- Exercise of the constitutional power vested in the executive under Art 72/161 has violated the fundamental rights of the petitioners.
- Impugned executive orders against the petitioners were passed without considering the supervening events (delay) which are crucial for deciding the same.
- An inordinate delay in execution of death sentence would infringe the right to life under Art 21 and would entitle the convict to approach Court under Art 32 of the Constitution.
- Human life is sacred and every effort should be made to protect it.
- In a petition filed under Art 32 even without Presidential Order, if there is unexplained delay in execution of death sentence the grievance of the convict can be considered by the Court.
Arguments in favour of the Respondents
The following arguments were advanced by the Respondents:
- The alleged delay in furnishing the relevant documents for consideration of the Mercy Petition by the President happened because these details are gathered from the State/Prison authorities and takes a lot of time and involves protracted correspondence with the prison authorities and State Government.
- These documents are then extensively examined and pros and cons are weighed to arrive at a decision and this process would take time.
- Time taken in examination of mercy petitions may depend upon the nature of the case, the scope of inquiry to be made and the number of mercy petitions submitted on behalf of the accused. And there cannot be a specific time limit for examination of mercy petitions.
- Art 72 envisages no time limit for disposal of Mercy Petition and therefore no such time limit can be prescribed.
- The power under Art 72 is discretionary and cannot be taken away, altered, modified or interfered with by any statutory provision or authority.
- Delay in itself does not entail a person under sentence of death to request for commutation. (D Shetty v. International Airport Authority)
- Death penalty is imposed on a person found guilty of offence of heinous nature after following the due procedure which is subject to appeal and review and therefore delay in execution must not be a ground for commutation of sentence of such a heinous crime.
- Moreover the commutation of death sentence if made solely on the basis of delay would be against the victim’s interest.
The Court observed that Mercy jurisprudence is a part of evolving standard of decency, which is the hallmark of the society and that retribution has no constitutional value in our largest democratic country. Even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same. The Court was of cogent view that undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is violation of Art 21 and thereby entails as the ground for commutation of sentence.
Finally The Court held that, in the absence of proper, plausible and acceptable reasons for the delay, the delay of twelve years in considering the mercy petition is a relevant ground for the commutation of death sentence into life imprisonment.
Accordingly, both the death convicts- Suresh and Ramji have made out a case for commutation of their death sentence into life imprisonment.
The Court also gave guidelines for effective governing of the procedure of filing mercy petitions and for the cause of the death convicts. They are as follows:
1. Solitary or single life confinement prior to the rejection of the mercy petition by the President is unconstitutional and should not be adopted.
2. Even after rejection of the mercy petition by the President, the convict can approach a writ court for commutation of the death sentence or challenge the rejection of the mercy petition and legal aid should be provided to the convict at all stages.
3. When a mercy petition is received or communicated by the State Government after the rejection by the Governor, necessary materials such as police records, judgment of the trial court, the HC and the SC and all other connected documents should be called at once fixing a time limit for the authorities for forwarding the same to the Ministry of Home Affairs.
4. The rejection of Mercy Petition by the Governor or the President should forthwith be communicated to the convict and his family in writing.
5. Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor.
6. It is necessary that a minimum period of 14 days be stipulated between the communication of the rejection of the Mercy Petition and the scheduled date of execution.
7. There should be regular mental health evaluation of all death row convicts and appropriate medical care should be given to those in need.
8. Copies of relevant documents should be furnished to the prisoner within a week by the prison authorities to assist in making mercy petition and petitioning the courts.
9. Prison authorities should facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution.
10. Compulsory Post Mortem to be conducted on death convicts after the execution.
Though the commutation of death sentence of the petitioners is an apt decision since they have encountered a delay of 12 long years, this judgment can set out bad precedent for future cases. The commutation of sentence only based on delay will make a complicated legal situation.
It is true that the power under Art 72/161 is the discretionary power of the President and Governor and the same cannot be regulated by any statutory power or authority. But to leave the same uncontrolled may give rise to problems. Therefore by leaving the power unquestionable we can make it questionable on how these powers are exercised. The Judiciary can certainly request the Ministry to follow its own rules which can reduce to a large extend the delay caused.
This will help us ensure that the death convicts avail all their rights till the last minute of execution.