DATE : 15-12-1989 1991-(097)-CRLJ -1325 -MAD

JUDGE(S) : S T Ramalingam.T S Arunachalam MADRAS HIGH COURT

JUDGMENT

ARUNACHALAM, J. :- A few of the convicts, who are now in prison for a few years in pursuance of the verdict of this Court and the Apex Court, sentencing them to the extreme penalty or law and who are awaiting execution, have thronged this Court by these writ petitions with a cry “I want to live-let me not die”, though the Court had verdicted, they deserve to die. These writ petitions are mainly based on the long delay on the part of the executive in disposing of their mercy petitions. They claim to have suffered mental agony of living under the shadow of death for a long long period and clamour that they should not suffer that agony and longer.

W.P. No. 10239 of 1985

Haja Mohideen, the petitioner in this writ now confined in Central Prison, Trichirapalli, was tried in Sessions Case No. 38 of 1978 on the file of the Court of Session, East Thanjavur Division at Nagapattinam and sentenced to death, subject to confirmation by the Court, by judgment dated 30th December, 1978. He was alleged to have committed the murder of Katheeja Ammal, Jainabgani Ammal and Abdul Majeed either by cutting with a knife or by administering cyanide poison to them. There were also charges under sections 392 read with S. 397 I.P.C., 201 and 307 IPC. The murders had taken place between 6th July 1976 and 14th March, 1977. The petitioner filed C.A. No. 208 of 1979 in this Court, challenging his conviction and the reference made under section 366 Cr.P.C. was taken up as Referred Trial No. 2 of 1979. R.T. No. 2 of 1979 and C.A. No. 208 of 1979 were disposed of together and by judgment dated 14th February, 1990, this Court confirmed the sentence of death imposed on the petitioner by the trial court. The petitioner had filed an appeal to the Supreme Court of India, which was dismissed on 12th April, 1982 in S.L.P. (Crl.) 285 of 1982. The petitioner filed W.P. No. 286 of 1983 before the Supreme Court, which was also dismissed on 21-10-1983. Review Petition (Crl.) 152 of 1985 preferred by the petitioner in the Supreme Court was dismissed on 15-3-1985. While filing the present writ petition, the petitioner had filed W.M.P. of 1985 for stay of all further proceedings in S.C. No. 38 of 1978 as confirmed by this Court in R.T. No. 2 of 1979. An order of stay was granted and execution had been stayed. The petitioner filed a mercy petition on 28-8-1985 addressed to the President of India. This petition was forwarded from prison and routed through the Governor of Tamil Nadu. The mercy petition was rejected by the Governor of Tamil Nadu on 10-12-1985. After such rejection, the mercy petition was forwarded to the President of India on 19-12-1985. The mercy petition was rejected by the President on 21-6-1988. Thus, there has been a delay of 2 years and 6 months in the disposal of the mercy petition by the President of India. It is also to be noticed that there is no explanation why it took 4 months for the State Government to forward the mercy petition of the petitioner to the President of India.

2. This writ petition was admitted by this Court on 14-10-1985. In the counter filed by the Joint Secretary to Government, Home Department, Madras, sworn to on behalf of Respondents 2 to 5, various dates of the different proceedings in Court have been listed with a statement that in view of the stay order made by this Court in W.M.P. No. 15483 of 1985 in W.P. No. 10239 of 1985, the execution could not be carried out. The affidavit further states that by letter No. F. 9/1/86 Judicial dated 21-6-1988, the Under Secretary to Government of India, of Home Affairs, New Delhi, had informed the Special Commissioner and Secretary to Government, Home Department, Madras, that the mercy petition preferred by the petitioner to the President of India had been rejected and that the President of India was pleased to decline to interfere on behalf of the condemned prisoner Haja Mohideen. The affidavit further states that no condemned prisoner was kept in solitary confinement unless he was under sentence of death based on the decision of the Supreme Court in Sunil Batra v. Delhi Administration, AIR 1978 Sc 1675 : (1978 Cri LJ 1741). No explanation has been offered regarding the delay in consideration of the mercy petition by the Governor of Tamil Nadu as well as the President of India, undoubtedly the petitioner having a two pronged right to approach the Governor and the President for mercy.

W.P. No. 6456 of 1988

3. The petitioner in this writ petition Panchalingam is the friend of the prisoner Ekambaram, who is now confined in the Central Prison, Vellore, Ekambaram was tried in S.C. No. 143 of 1983 on the file of the Court of Session, North Arcot at Vellore, for having caused the death of his brother Chandran Chettiar, his two sons and daughters by cutting them one after another with an axe on the night of 18/19-7-1983 at their residence in Athimakulampalli village. The trial court sentenced the petitioner to death, by judgment dated 27th April, 1984, which was confirmed by this Court in R.T. No. 3 of 1984, by judgment dated 10-9-1984. The petitioner’s approach to the Supreme Court did not yield fruit and on 17-12-1985 the sentence of death stood confirmed. The petitioner preferred a mercy petition on 5-9-1985 addressed to the President of India. The mercy petition, which was routed through the Governor of Tamil Nadu, was considered by the Governor and rejected on 18-10-1985. The mercy petition was then forwarded by the State of Tamil Nadu to the President of India on 25-10-1985. The mercy petition was rejected on 17-5-1988. There was no explanation furnished for the delay between 18-12-1985 and 17-5-1988, the period during which the mercy petition was pending before the President of India after the final verdict of the Supreme Court was rendered on 17-12-1985. Approximately 2 1/2 years delay stands unexplained. In the counter filed by the Joint Secretary to the Government, Home Department, Madras, it is stated that the contention of inordinate delay in considering the mercy petition being in violation of Art. 21 of the Constitution of India was untenable. The allegation of the prisoner being kept in prolonged detention in illegal solitary confinement was also denied. The independent non-application of the mind by the President of India alleged in the affidavit of the petitioner was refuted as untenable. The several dates extracted earlier form part of the counter-affidavit.

W.P. Nos. 7825 and 7876 of 1988

4. These two writ petitions relate to the prisoner Subramani alias Subramaniam now confined in Central Prison, Coimbatore. W.P. No. 7825 of 1988 has been filed by one K. M. Subramaniam a practising Advocate of this court and a staunch member in Kongu Vellala Community Association at Madras, on behalf of the prisoner, who is also stated to belong to the same community. This writ petition also challenges the execution of Nataraya Gounder and Nattudurai, who also belong to the same community. But as far as those two persons are concerned, this writ petition is not being disposed of in view of the impending impleading of the Central Government as a party, for consideration of their plea raised in this writ petition. Therefore, W.P. No. 7825 of 1988 will be considered only in respect of the prisoner Subramaniam, while the consideration of the cases of the other prisoners will be kept in abeyance.

5. W.P. No. 7876 of 1988 also relates to the prisoner Subramani alias Subramaniam, this writ petition having been filed on his behalf by the Secretary, Legal Aid Centre, High Court. Madras.

6. Subramani alias Subramaniam was tried in S.C. No. 5 of 1983 on the file of the Court of Session, Periar Division at Erode, for having caused the death of Nachimuthu Gounder, Chinnamani Ammal and Baby on 9-8-1982 at or about 6 p.m. in Thenmugam Kangayampalayam Village by cutting them with an aruval. By judgment dated 19-9-1983 the trial Judge sentenced Subramani alias Subramaniam to death. Referred Trial 9 of 1983 clubbed with C.A. No. 787 of 1983 preferred by the prisoner were together disposed of by this Court on 2-2-1984, confirming the convictions as well as the sentence imposed on the prisoner on all three counts of murder. The prisoner filed a special leave petition before the Supreme Court of India, which was dismissed on 27-3-1985. A subsequent writ petition filed under Art. 32 of the Constitution of India in W.P. No. 106 of 1986 for commuting the sentence of death and questioning the validity of the death sentence was also dismissed. The prisoner sent a mercy petition dated 19-4-1985 addressed to the Governor of Tamil Nadu and the President of India. The Governor of Tamil Nadu rejected the mercy petition on 21-3-1986. The Tamil Nadu Government forwarded the mercy petition addressed to the President of India only on 31-3-1986 along with the rejection order of the Governor of Tamil Nadu. The President of India rejected the plea for mercy on 17-6-1988. It is apparent from the dates given above that the Governor of Tamil Nadu had taken approximately 11 months to dispose of the mercy petition and the State Government had taken more than 11 months to forward the mercy petition of the petitioner dated 19-4-1985 to the President of India. No explanation has been offered for the long delay in forwarding of the representation of the prisoner to the President of India, and equally there is no explanation for the delay of over 2 years and 3 months in the disposal of the mercy petition by the President of India.

7. In the counter-affidavit filed by the Joint Secretary, Home Department, Government of Tamil Nadu, it is stated that the Governor of Tamil Nadu had disposed of the mercy petition of the petitioner on 21-3-1986 and the allegation that the Governor had not disposed it of, was incorrect. It is further stated that the delay in execution was due to the fact of pendency of the prisoner’s case before this Court or the Supreme Court as well as the mercy petition. The contention in the affidavit of the petitioner that the death sentence should be commuted to imprisonment for life on account of delay, according to the counter-affidavit, was untenable.

W.P. No. 7827 of 1988.

8. The petitioner herein is the father of the prisoner Jayaprakash alias Jayaprakasam. The petitioner’s son was tried in S.C. No. 89 of 1984 on the file of the Court of Session, Chingleput under 9 charges, each under section 302 IPC on the allegation that on 24-2-1984 between 3.00 and 10 p.m. at Plot No. 70, Palaniappa Nagar, he caused the death of the several persons either by beating with a casuarina stick or throttling their necks or cutting with a knife. The trial court, by judgment dated 10-10-1984 imposed death sentence on the prisoner. The appeal preferred by the prisoner in C.A. No. 703 of 1984 and the Reference R.T. 11 of 1984 were taken up together by this Court and disposed of on 9-4-1985, confirming the sentence of extreme penalty awarded by the trial court. The petitioner moved the Supreme Court of India, which affirmed the sentence of death confirmed by this Court, on 8-7-1985. On 22-8-1985 the prisoner preferred mercy petitions addressed to the President of India and the Governor of Tamilnadu, exercising his dual right. It appears that there was an earlier petition on 1-6-85 for mercy, addressed to the President before the Judgment of the Supreme Court dated 8-7-1985 and that will not loom large for consideration now. The mercy petition dated 22-8-1985 was rejected by the Governor of Tamil Nadu on 18-10-1985. The mercy petition addressed to the President of India was forward by the State Government on 25-10-1985 and was rejected by President on 17-6-1988. According to the learned counsel for the petitioner, the prisoner was informed orally about the rejection by the President, negative his plea for mercy. It appears that another mercy petition dated 29-8-1988 on behalf of the prisoner was sent to the President of India. On behalf of the State Government it was represented that the prisoner was informed on 23-11-1988 that there was no ground to consider over again the mercy petition of the prisoner dated 29-8-1988. The learned counsel for the petitioner would contend that since the mercy petition was addressed to the President of India, the alleged reply by the State Government will not meet the requirements of law. Needless to state at this stage that delay in consideration of successive petitions for mercy may not enure in favour of the prisoner. Therefore, obviously explanation will have to be offered for the delay in forwarding the mercy petition of the prisoner to the President as well as for the delay that had occasioned in the disposal of the mercy petition by the Governor of Tamil Nadu and the President of India. From the date of the mercy petition addressed to the President of India till its disposal, a period of 2 years and 10 months have elapsed. From the date of the forwarding of the mercy petition to the President of India by the State Government its disposal, the delay is 2 years and 8 months.

9. In the counter-affidavit filed by the Joint Secretary to the Government of Tamil Nadu, it is stated that it was not open to the petitioner to contend that he was not responsible for the delay in execution and, therefore, the death sentence should be commuted as imprisonment for life. On the main aspect of delay, no material is furnished in the counter affidavit, offering an explanation.

10. Having narrated the facts in all these writ petitions, our attention will have to be focussed now on the feasibility of issue of a direction not to carry out the sentence of death and the possibility of altering it into imprisonment for life.

11. Mr. N. Natarajan, learned senior counsel, Thiru K. V. Sankaran and Thiru S. Krishnaswami, contended that the petitions for mercy under Article 72 and 161 of the Constitution of India will have to be disposed of expeditiously by the Governor of the State and the President of India and if there was a delay in disposal of mercy petitions occurring at the instance of the executive, the sentence of death will become in executable. They would submit that Article 21 of the Constitution demanded that any procedure, which takes away the life and liberty of persons, must be reasonable, just and fair. This procedure of fairness is required to be observed at every stage and till the last breath of the life. According to them, in all these writ petitions there is considerably long delay, which stands unexplained and on that score alone this court would be justified in commuting the sentence of death on each one of the prisoners to one of imprisonment for life. They also contended that this dual right in the case of sentence of death, whether it be inflicted under any law passed by Parliament or by the law of the States, the power is vested in both, the President as well as the State concerned, to commute the sentence. This was the scheme as explained in the Debates of the Constituent Assembly. The Debates disclose that if the offence is committed in a particular locality, the concerned Home Minister would advise the Governor on a mercy petition from an offender sentenced to death, for he would be in a better position to tender advice having regard to his intimate knowledge of the circumstances of the case and the situation prevailing in that area. Even if the Governor rejects the mercy petition, it was always open to the offender to approach the President with another mercy petition and try his luck. The learned counsel also brought to our notice a few decisions of the Supreme Court in support of their contentions, which we will consider at the relevant time in the proper context. Thiru N. Natarajan referred to the Tamil Nadu Prison Rules, 1983 with a specific emphasis to Rules 915 and 916. These Rules contemplate the forthwith dispatch to the Commissioner and Secretary to Government, Home Department by the Superintendent of the Prison, the petition submitted by the convict for mercy addressed to the Government of Tamil Nadu and the President of India. If no reply was received within 15 days from the date of despatch of the petition from the the prison, the Superintendent should telegraph to the Commissioner and Secretary to Government, drawing attention to the fact and in no case execution could be carried out before the receipt of the formal orders from the Government. The Prison Rules and observations of the Supreme Court in AIR 1983 SC 465 : (1983 Cri LJ 803) (Sher Singh v. State of Punjab) was referred to, to impress upon us the essence of the time factor which would pervade, while dealing with mercy petitions of prisoners sentenced to death.

12. The learned Advocate-General and Thiry G. Krishnamurti, the Additional Public Prosecutor took us through the factual details and contended that in most of these cases, the delay in execution was due to the successive petitions filed either by the prisoner himself or through his relations in Courts. They would rely on the observations of Jagannatha Shetty J., in Triveniben v. State of Gujarat, AIR 1989 SC 1335 : (1990 Cri LJ 1810) to contend that 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 had to still consider the observation in Sher Singh’s case, AIR 1983 SC 465 : (1983 Cri LJ 803) which reads as hereunder. –

“…. the nature of the offence, the diverse circumstances 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 whether the sentence should be vacated for the reason that its execution is delayed.”

13. The death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh’s case AIR 1980 SC 898 : (1980 Cri LJ 636). The law of the land laid down by the Supreme Court has to be accepted. In Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : (1989 Cri LJ 1466), the Supreme Court has observed as follows (Para 9) :

“It must at once be conceded that offenders of some particularly grossly brutal crimes which send tremors in the community have to be firmly dealt with to protect the community from the perpetrators of such crimes. Where the incidence of a certain crime is rapidly growing and is assuming menacing proportions, for example, acid pouring or bride burning, it may be necessary for the Courts to award exemplary punishments to protect the community and to deter others from committing such crimes. Since the legislature in its wisdom thought that in some rare cases it may still be necessary to impose the extreme punishment of death to deter others and to protect the society and in a given case the country, it left the choice of sentence to the judiciary with the rider that the Judge may visit the convict with the extreme punishment provided there exist special reasons for so doing. In the face of this statutory provision which is consistent with Art. 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, we are unable to countenance counsel’s extreme submission of death in no case. The submission that the death penalty violates Articles 14, 19 and 21 of the Constitution was negatived by this court in Bachan Singh v. State of Punjab ((1980) 2 SCC 684 : AIR 1980 SC 898 :(1980 Cri LJ 636))”

14. In our judicial system several difficult decisions are left to the Presiding Officers without providing guiding scales for the same. We have to analyse the view expressed by the Supreme Court in a few to those cases brought to our notice, which we will presently refer to, which, in our view, should form the foundation or basis for the decision to be arrived at, in these petitions.

15. The earliest of the cases in which the sentence of death was vacated on the ground that delay exceeding 2 years in the execution of sentence of death, should be considered sufficient to entitle the person under sentence of death to invoke article 21 and demand the quashing of sentence of death, was rendered by the Supreme Court in T. V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361 (2) : (1983 Cri LJ 481). It was held in that case that prolonged 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 was to quash the sentence of death. The dehumanising factor of prolonged delay in the execution of a sentence of death, in the view of the Supreme Court, has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law. The Supreme Court further observed that the “Procedure established by law” does not end with the pronouncement of sentence and that it included the carrying out of sentence. Finally it was held.

“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”

This view of the Supreme Court in Vatheeswaran’s case was dissented by a Bench of three Judges in Sher Singh v. State of Punjab AIR 1983 SC 465 : (1983 Cri LJ 803). The Supreme Court confirmed the view that prolonged in execution of a death sentence was unquestionably an important consideration for determining whether the sentence should be allowed to be executed, but no hard and fast rule could be laid down 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”. To this extent the decision in “Vatheeswaran’s case was overruled. The Supreme Court in the latter case took note of the fact of common experience as regards the time generally occupied by proceedings in the High Court, the Supreme Court and before the Executive Authorities and, therefore, felt that no absolute or unqualified rule could be laid down that in every case in which there was a long delay in the execution of a death sentence, the sentence should be substituted by the sentence of life imprisonment. The Supreme Court also referred to the not uncommon practice of the prisoners filing a series of writ petitions and review petitions challenging judgments and orders, which had assumed finality, without any seeming justification. Though death sentence should not, as far as possible, be imposed, but when it had been imposed in rare and exceptional cases wherein that sentence was also upheld by the Apex court, the judgment or order of the court sought not to be allowed to be defeated by applying any rule of thumb. However, the Supreme Court in Sher Singh’s case took the opportunity to impress upon the Government of India and the State Governments that petitions filed under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code should be disposed of expeditiously. As observed in the said decision, a self imposed rule should be followed by executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it was received. Long and interminable delays in the disposal of these petitions were a serious hurdle in the dispensation of justice and indeed, such delays tended to shake the confidence of the people in the very system of justice.

16. The Supreme Court finally held that no less important was the nature of the offence, the diverse circumstances 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 was vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution had been delayed. After the decision in Sher Singh’s case (1983 Cri LJ 803), the very same question of delay in execution of a death sentence for more than two years and invoking the aid of Article 21 came up for consideration before a Division Bench of two Judges in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR 1985 SC 231 : (1984 Cri LJ 1909), which included Chinnappa Reddy, J., who was a party to the decision rendered in Vatheswaran’s case, AIR 1983 SC 361 (2) : (1983 Cri LJ 481). In that case the sentence of death, was hanging over the head of the prisoner for about two years and nine months. Observing that the Referred Trials and Confirmation cases were dealt with speedily by High Courts and only when they reached the Supreme Court delay occurred and that surely inability of the Supreme Court to devise a procedure to deal expeditiously with such matters of life and death can be no justification for silencing “the voice of justice and fair play” which demanded that “so long as life lasts, so long shall it be the duty and endeavor of the Supreme Court to give to the provisions of the Supreme Court to give to the provisions of the Constitution a meaning which would prevent human suffering and degradation”. The learned Judges observed that when the Supreme Court sat in Divisions of 2 and 3 Judges for the sake of convenience, it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges. In Javed Ahmed’s case, on being satisfied on an overall view of all the circumstance, the Court held that the petitioner in that case was entitled to invoke the protection of Article 21 of the Constitution. The sentence of death was quashed and the sentence of imprisonment of life was substituted

17. In Kehar Singh v. Union of India, AIR 1989 SC 653 : (1989 Cri LJ 941), the Supreme Court remarked that to any civilised society, there can be attributes more important than the life and personal liberty of its members and that was evident from the paramount position given by the Courts to Article 21 of the Constitution. These twin attributes of life and personal liberty enjoyed a fundamental ascendancy over all other attributes of the political and social order and consequently, the Legislature, the Executive and the Judiciary were more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ.

18. The important question whether prolonged delay in execution of death sentence, rendered death sentence inexecutable and entitled the accused to demand the alternate sentence of life imprisonment was considered by a five Judge Bench of the Supreme Court in Smt. Triveniben v. State of Gujarat, AIR 1989 SC 1335 : (1990 Cri LJ 1810) to resolve the conflict in the views expressed in Vatheeswaran’s case, AIR 1983 SC 361 (2) : (1983 Cri LJ 481) and Sher Singh’s case, AIR 1983 SC 465 : (1983 Cri LJ 803). The Supreme Court in Triveniben’s case overruled the earlier decision in Vatheeswaran’s case, AIR 1983 SC 361 (2) : (1983 Cri LJ 481) to that extent, that no fixed period of delay could be held to make the sentence of death inexecutable. In this case Jagannatha Shetty, J., while concurring with the majority view, chose to consider independently the various facets of this question placed before the Supreme Court. The majority view was rendered by Oza. J., The law laid down by the majority is clear and categoric that so long as the matter was pending in any Court before final adjudication, the person who had been condemned or who had been sentenced to death had a ray of hope. Therefore, it was the opinion of the Supreme Court that it could not be contended that a person suffered that mental torture which a person suffered when he knew that he was to be hanged, but was waiting for the Dooms-Day. The delay which could, therefore, be considered while dealing with the question of communication of sentence of death into one of the life imprisonment could only be from the date of pronouncement of judgment by the apex court when the judicial process had come to an end. The Court observed that undue long delay in execution of the sentence of death would entitle the condemned person to approach the Supreme Court under Article 32, but court would 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 conclusion reached by the court while finally maintaining the sentence of death. However, the court may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of the sentence of death 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.

19. In this context it will be relevant to extract the majority opinion, which forms part of paragraph 22 of the Judgment –

“…… 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 Art. 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.

The Supreme Court held that after the matter was finally decided judicially, it was open to the person to approach the President or the Governor, as the case may be, with a mercy petition. Repeated mercy petitions and time spent on petitions for review at the instance of the convicted person shall not be taken note of while considering the question of delay after the pronouncement of the final judicial verdict. The only legitimate remedy which the person would be entitled, is to seek the jurisdiction of the court on the prolonged and undue delay in the consideration of the mercy petition by the executive The Court would only examine the nature of the delay caused and the circumstances that had ensued after the sentence was finally confirmed by the judicial process. The Supreme Court expected the concerned authorities, who received petitions under Article 72 or 161 to have them disposed of expeditiously.

20. It will be equally necessary to extract the observations of Jagannatha Shetty, J. in Triveniben’s case (1990 Cri LJ 1810) in his concurring judgment in paragraph 73 :-

“…. The person who complains about the delay in the execution should not be put to further delay. The matter, therefore, must be expeditiously 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 Art. 226 or under Art. 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 p. 596 of 1983 (2) SCR 582 : (at p. 472 of AIR 1983 SC 465) :-

“The nature of the offence, the diverse circumstances 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 whether the sentence should be vacated for the reason that its execution is delayed.”

21. There is an apparent divergence in the view expressed by the majority and the concurring view expressed by Jagannatha Shetty, J. While the majority of the judges hold that it would not be open to the Supreme Court to go behind or to examine the final verdict reached by a competent court, convicting and sentencing a condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with the subsequent circumstances could be held to be sufficient for coming to a conclusion that the execution of sentence of death would not be just and proper. The nature of the offence, the 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 was considered relevant, though the improvement in the conduct of the prisoner after the final verdict, cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also. But Jagannatha Shetty, J., has expressed his view that inordinate delay may be a significant factor, but that by itself could not render the execution unconstitutional. Nor it can he divorced from the dastardly and diabolical circumstances of the crime itself and has quoted the observations in Sher Singh’s case that the nature of the offence, the diverse circumstances 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 concerned vacation of the death sentence on the ground of delay in execution.

22. If as observed by the majority, the nature of the offence, the circumstances in which the offence was committed will have to be taken as found by the competent Court while finally passing the verdict, this would take in a dastardly and diabolical circumstances of the crime itself within its fold. Equally the verdict of the Court, while holding that extreme penalty was the just sentence, must be deemed to have taken note of all the circumstances pin-pointed in Sher Singh’s case (1983 Cri LJ 803) (SC). Therefore, in view of the limited option, following the binding view of the majority in “Triveniben” case (1990 Cri LJ 1810) (SC), we conclude that it will not be open for us to consider the nature of the offence or the circumstances under which the offence was committed which will have to be taken note of as found by the Courts while they have verdicted finally. Even while reaching a conclusion as to whether inordinate delay coupled with the subsequent circumstances could be held to be sufficient to substitute life imprisonment for the death penalty, it will not be open for us to go behind or to examine the final verdict reached by the competent court which had considered all the circumstances while convicting and sentencing the condemned prisoner. We will be left with the only consideration of the delay on the part of the executive after the finality of the judicial process. The last of the cases in which the Supreme Court had to consider this important question of a speedy trial as a part of one’s fundamental right under Article 21 of the Constitution to life and liberty which liberty was no less important for disposal to the mercy petition in execution of the sentence of death is enunciated in Madhu Mehta v. Union of India, (1989) 3 Crimes 104 : (1989 Cri LJ 2321).

23. In the aforestated case, the Supreme Court held, that it was well-settled that undue long delay in execution of the sentence of death would entitle, the condemned person to approach the Supreme Court under Article 32 of the Constitution, but that Court would only examine the nature of delay caused and circumstances that ensured after sentence was finally confirmed by the judicial process and will have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death. But the Court was entitled and indeed obliged to consider the question of inordinate 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 can be considered to be decisive. 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. Endorsing the views of Jagannatha Shetty J., in Triveniben case (1990 Cri LJ 1810) that as between funeral fire and mental worry, it is the latter which was more devastating, for funeral fire burns only the dead body while the mental worry burns the living one, held on the facts of that case that the mental agony suffered by the convict, living under the shadow of death for long, far too long should be put an end to by altering the sentence into one of imprisonment for life.

24. The view of the Supreme Court in “Madhu Mehta’s” case (1989 Cri LJ 2321) further confirm the conclusion we have arrived at that we will have no jurisdiction to reopen the conclusions reached by the court while finally maintaining the sentence of death and it will not be open for us to consider the nature of the offence and circumstances under which it was committed, while apply for mind to the limited scope of the right of the prisoner to a lesser sentence in view of the executive delay.

25. It was observed that delay defeats justice. In that background let us look into the facts in these writ petitions.

26. In each one of these writ petitions we have extracted already, the dates on which the death sentences were confirmed, reaching finality in the judicial process. We have also pointed out the dates of filing of the mercy petitions in each one of those cases as well as the dates on which either the Governor of Tamil Nadu or the President of India had disposed of those petitions. To take a second look in W.P. No. 10239 of 1985, the death sentence imposed on the prisoner was confirmed by the Supreme Court on 12th April, 1982, and even his review petition was dismissed on 15-1-1985. The mercy petition dated 28-8-1985 addressed to the President of India was forwarded from prison, routing it through the Governor of Tamil Nadu to the President of India. The plea for mercy was rejected by the Governor on 10-12-1985 and only thereafter on 19-12-1985 the mercy petition of the prisoner dated 28-8-1985 was forwarded to the President of India. Though there is no explanation for the delay of about 3 1/2 months in the disposal of the mercy petition by the Governor of Tamil Nadu, it may not readily benefit the prisoner. At the same time, it will be better to point out to the executive the observations of the Supreme Court in Sher Singh case (1983 Cri LJ 803) that the self imposed rule should be followed by the executive authorities rigorously, that every such petition filed under articles 72 and 161 of the Constitution shall be disposed of within three months from the date on which such petitions received. However, it is rather strange that the respondents had not chosen to explain why the petition addressed to the President of India by the prisoner was kept in cold-storage for approximately four months before it was forwarded to the President of India. Ultimately the mercy petition was rejected by the President on 21-6-1988. From the date of the mercy petition till its disposal by the President, two years and 10 months have elapsed and from the date of its receipt by the President, before its disposal, a time lag of two years and six months had ensued. Unfortunately no explanation is forthcoming for this unduly long in the disposal of the mercy petition preferred by the prisoner.

27. In the case pertaining to W.P. No. 6456 of 1988, the judicial process leading to the confirmation of the extreme penalty of law imposed on the prisoner stood terminated on 17-12-1985. The mercy petition dated 5-9-1985 addressed to the President of India and routed through the Governor of Tamil Nadu was rejected by the latter on 18-10-1985. Subsequently the mercy petition was forwarded by the State Government to the President of India on 25-10-1985 and was rejected by the latter on 17-5-1988. A delay of 2 1/2 years in the disposal of the mercy petition stands completely unexplained.

28. In the case pertaining to W.P. Nos. 7825 and 7826 of 1988 the sentence of death imposed on the prisoner was confirmed by the Supreme Court on 27-3-1985 and the petition under Article 32 of the Constitution filed by the prisoner was also rejected. The mercy petition dated 19-4-1985 addressed to both the Governor and the President of India was rejected by the former on 21-3-1986 and by the latter on 17-6-1988. Thus, there is a long and unexplained delay of about 11 months in the disposal of the mercy petition by the Governor and a delay of 3 years and 2 months in its disposal by the President of India. Even if we exclude the period between 19-4-1985 and 31-3-1986 during which period the State Government kept the mercy petition of the prisoner addressed to the President of India without bestowing any attention, still there is a delay of over 2 years and 3 months in the disposal of the mercy petition of the prisoner by the President of India. No explanation has been offered either for the delay in forwarding of the mercy petition by the State Government to the President of India, nor for the delay in the disposal by both the authorities.

29. In the case pertaining to W.P. No. 7827 of 1988, the Supreme Court confirmed the sentence of death on 8-7-1985. The mercy petition which will be relevant for consideration was sent on 22-8-1985 addressed to both the constitutional authorities. The Governor of Tamil Nadu negatived the plea for mercy on 18-10-1985 and only thereafter on 25-10-1985 the mercy petition of the prisoner, which was two months old by then was forwarded to the President of India. The rejection by the President was on 17-6-1988. Thus, there is an unexplained delay of 2 years and 8 months in the disposal of the mercy petition by the President of India from the date of its receipt and 2 months more will have to be added to it due to inaction of the State Government in forwarding the mercy petition of the prisoner to the President.

30. The executive power is pre-conditioned by its duty to be fair and quick. The principle of speedy trial in criminal cases implicit in the broad sweep and content of Article 21 is no less important for the disposal of the mercy petition. The expeditious consideration contemplated should reflect a sense of urgency in the executive and though it will be neither possible nor advisable to lay down a strait jacket formula uniformally applicable to all the cases, the period of time within which mercy petitions will have to be disposed of, the Court will have to consider judicially on the available material the gap between the receipt of the representation and its consideration by the executive. If the time lag is so unreasonably long and the explanation, if any, offered is unsatisfactory, the Court will have to necessarily intervene to put an end to the mental agony of the prisoner. In the context of the Tamil Nadu Prison Rules fixing a fifteen day period for remanding the Government about the pendency of a mercy petition, taken in conjunction with the observation of the Supreme Court in Sher Singh case, (1983 Cri LJ 803), suggesting a self-imposed rule to dispose of such petitions within three months, would amply indicate that the context implies anxious care on the part of the executive of perform its duty in this respect as early as practicable, without avoidable delay.

31. In none of these cages even an attempt had been made to explain the long delay. Can it not be then for no acceptable reason at all ? The Court is handicapped in not having any material to scrutinise if there were acceptable reasons for the executive delay. As per the law of the land, the only delay which would be material for consideration will be the delay in the disposal of the mercy petitions or the delay occurring at the instance of the executive. Lack of explanation for the undue delay strikes at the very root or foundation, necessitating the Court to enter a verdict in favour of the prisoner.

32. Death sentence is constitutionally valid and permissible within the constraints of the rule laid down in Bachans Singh case, AIR 1980 SC 898 : (1980 Cri LJ 636) and it may be necessary for the Courts to award exemplary punishments in certain crimes to protect the community and deter others for committing such crimes. Further if the award of extreme penalty in rare and exceptional class of cases, wherein death sentence had been judicially upheld as well, if such judgment or order ought not to be allowed to be defeated, the constitutional authorities and the executive will have to be conscious of the expeditious role that they have to play in the context of the mental agony that the prisoner, who had sought for mercy, was undergoing. Unless that awareness gets reflected by quick disposal of the petitions for mercy, retaining death sentence in the statute book, may become an empty formality.

33. We have in extenso extracted the views of the Supreme Court in the cases referred before us and applying those principles laid down, we are satisfied that the great deal of mental worry suffered by each one of the prisoners for a long period had not been sought to be justified by acceptable reasons and hence the only option open to us on the facts unfurled in all these cases, will be to direct that the death sentence should not be carried out on each one of these prisoners and the sentence imposed on them be altered into one of imprisonment for life. These writ petitions are disposed of with the aforesaid directions.

Order accordingly.