Full Judgment Text
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PETITIONER:
JAVED AHMED ABDUL HAMID PAWALA
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT09/11/1984
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1985 AIR 231 1985 SCR (2) 8
1985 SCC (1) 275 1984 SCALE (2)697
CITATOR INFO :
1985 SC1293 (*)
1986 SC 806 (*)
1988 SC1531 (4)
RF 1989 SC 142 (1)
RF 1989 SC1335 (1,3,28,30,31,33,34)
RF 1989 SC1933 (27)
ACT:
Constitution of India-Article 21-Scope of-Protection of
Art. 21 can be invoked by a person awaiting execution of
sentence of death for commuting death sentence into
imprisonment for life if there is delay exceeding two years
in the execution of sentence of death.
Practice & Procedure-A Division Bench of three Judges
cannot purport to overrule decision of a Division Bench of
two judges.
HEADNOTE:
The petitioner was convicted and sentenced to death by
the Sessions Judge on 6. 2. 1982 . The High Court confirmed
the sentence of death on 29130. 4.1982. An appeal preferred
by the petitioner to this Court under Art. 136 of the
Constitution was dismissed on 20. 4. 1983. The petition for
review was dismissed on 12, 8. 1983. A petition for clemency
was also rejected by the President of India. The petitioner
filed the present writ petition under Art. 32 of the
Constitution praying that in view of his tender age, his
reformation in jail and the long lapse of time since the
passing of the sentence of death on him the execution of the
sentence of death may be stopped and the sentence may be
commuted to one of imprisonment for life. On being asked by
this Court, the Superintendent of the jail where the
petitioner had been kept reported that so far nothing
adverse to the petitioner had came to the notice of the
authority.
Allowing the petition,
^
HELD; In T. V. Vatheeswaran v. State of Tamil Nadu, a
Division Bench of this Court consisting of one of us and
R.B. Misra, J. held that making all reasonable allowance for
the time necessary for appeal and consideration of reprieve,
delay exceeding two years in the execution of a sentence of
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death should be considered sufficient to entitle the person
under sentence of death to invoke Art. 21 of the
Constitution and demand the quashing of the sentence of
death. Shortly thereafter in Sher Singh v. Stat of Punjab,
another Division Bench of three learned Judges of this Court
presided over by Chandrachud, C.J while expressing almost
complete agreement with most of what had been said in
Vatheeswaran’s case dissented from the opinion expressed
therein that a delay of two years and more was sufficient to
entitle a person under sentence of death to invoke Art 21.
Of the Constitution. The reason was, they said "The fixation
of time limit of two years does not seem to us to accord
with the
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common experience of the time normally consumed by the
litigative process and the proceedings before the
executive". They also said that besides delay there were
also other factors to be taken into account while
considering the question whether the sentence of death
should be vacated. Referred Trials and Confirmations Cases
are dealt with speedily by High Courts and are never kept
pending longer than two or three months. It is only when
they reach this Court that the delay occurs. But surely, our
inability to devise a procedure to deal expeditiously with
such matters of life and death can be no justification for
silencing what the learned Chief Justice has himself so
eloquently described as ’the voice of justice and fairplay’
which demands that ’so long as life lasts, so long shall it
be the duty and endeavour of this Court to give to the
provisions of our Constitution a meaning which will prevent
human suffering and degradation. [17A-F]
T. V. Vatheeswaran v. Sate of Tamil Nadu, [1983] 2 S.
C.C. 68, Furman v. State of Georgia, 408 US 238, Noel Riley
v. Attorney-General, 1982 Crl. Law Review 679 and Sher Singh
v. Slate of Punjab, AIR 1983 SC 465, referred to.
Whether a Division Bench of three Judges can purport to
overrule the judgment of a Division Bench of two Judges
merely because three is larger than two. The Court sits in
Divisions of two and three Judges for the sake of
convenience and it may be in-appropriate for a Division
Bench of three Judges to purport to overrule the decision of
a Division Bench of two Judges. Vide Young v. Bristol
Aeroplane Co. Ltd. It may be otherwise where a Full Bench or
a Constitution Bench does so. [17G-H; 18A]
Young v. Bristol Aeroplane Co. Ltd., 1944 (2) All ER.
293, referred to.
In the instant case, an over all view of all the
circumstances appears to us to entitle the petitioner to
invoke the protection of Art. 21 of the Constitution. We
accordingly quash the sentence of death and substitute in
its place the sentence of imprisonment for life. [l8B]
JUDGMENT:
ORIGINAL JURlSDICTION: Writ Petition (Criminal) No. 972
of 1984.
(Under article 32 of the Constitution of India)
Mrs. K. Hingorani and Mrs Rekha Pandey for the
Petitioner.
M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. To be or not to be", is the
question which Javed Ahmed Abdul Hamid Pawala has posed us.
In connection with certain cruel and multiple murders the
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petitioner was convicted and sentenced to death by the
Learned Sessions H
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Judge of Thane, on 6. 2. 1982. The High Court of Maharashtra
confirmed the sentence of death on 29/3()-4-1982. An appeal
preferred by the petitioner to this Court under Art 136 of
the Constitution was dismissed by us on 20. 4. 1983. The
petition for review was dismissed on 12. 8. 1983. A petition
for clemency was also rejected by the President of India The
Petitioner has filed the present writ petition under Art. 32
of the Constitution praying that in view of his tender age,
his reformation in jail and the long lapse of time since the
passing of the sentence of death on him, the execution of
the sentence of death may he stopped and the sentence may be
commuted to one of imprisonment for life. In his petition he
has frankly confessed to the dastardly crimes committed by
him. He has stated that he now releases the enormity of what
he has done and wants to atone and make good the injury
inflicted upon society by him by striving to serve humanity
if given a chance to do so. Moved by the apparent ring of
sincerity in the sentiments expressed by the petitioner in
his petition, one of us (E. S. Venkataramiah, J.) admitted
the petition and later it has been directed by the Court
that the petition should be heard by a Bench consisting of
the two of us. On 14. 9. 1984 we called for a report from
the Superintendent, Yeravada Central Prison, Pune to report
about the conduct and behavior of the prisoner during the
period of his incarceration. The report of the
Superintendent Central Jail is to the effect that so far
nothing adverse to the petitioner has came to the notice of
the authority. The question therefore is what is to be done
in the circumstances ? The petitioner is an young man aged
about 22 years. He appears to be genuinely repentant and he
now desires to atone for the grievous wrong that has been
done by him. The repentance and the desire appear to be
sincere as far as we are able to judge. The Jail authority
has no adverse comment to make against his conduct. The
sentence of death has now been hanging over his head for two
years and nine months.
In T.V. Vatheeswaran v. State of Tamil Nadu(l), a
Division Bench of this court consisting of one of us and
R.B. Misra, J. considered at length the question whether
delay in the education of the sentence of death was
sufficient to entitle the person under the sentence of death
to invoke Art. 21 of the Constitution. In
(1) [1983] 2 S.C.C. 68.
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opining that a delay exceeding two years would so entitle
the prisoner, we first observed :-
"First, let us get rid of the cob-webs of
prejudice. Sure, the murders were wicked and diabolic.
The appellant and his friend showed no mercy to their
victims. Why should any mercy be shown to them ? But,
gently, we must remind ourselves it is not Shylock’s
pound of flesh that we seek, nor a chilling of the
human spirit. It is justice to the killer too and not
justice untempered by mercy that we dispense. Of
course, we cannot refuse to pass the sentence of death
where the circumstances cry for it. But, the question
is whether in a case where after the sentence of death
is given, the accused person is made to undergo inhuman
and degrading punishment or where the execution of the
sentence is endlessly delayed and the accused is made
to suffer the most excruciating agony and anguish, is
it not open to a court of appeal or a court exercising
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writ jurisdiction, in an appropriate proceeding to take
note of the circumstance when it is brought to its
notice and give relief where necessary ?
After referring to Ediga Anamma, Lalla Singh, Bhagwan
Bux Singh, Sadhu Singh and Sahai, we proceeded to quota
Justice Brennan’s observation in Furman v.State of
Georgia(l), where he had said:
"The prospect of pending execution exacts a frightful
toll during the inevitable long wait between the
imposition of sentence and the actual infliction of
death." F
We then referred to the minority opinion of Lord
Scarman and Lord Brightman in Noel Riley v. Attorney-
General(2)7 where they had said:-
"It is no exaggeration, therefore, to say that the
jurisprudence of the civilised world, much of which is
derived from common law principles and the prohibition
against cruel and unusual punishments in the English
Bill of Rights, has recognised and acknowledged that
(1) 408 US 238.
(2) [1982] Crl. Law Review 679.
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prolonged delay in executing a sentence of death can
make the punishment when it comes inhuman and
degrading. As the Supreme Court of California commented
in Anderson case, it is cruel and has dehumanising
effects. Sentence of death is one thing; sentence of
death followed by lengthy imprisonment prior to
execution is another.
It is of course true that 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 is no answer to say that the man will
struggle to stay alive. In a truth, it is this
ineradicable human desire which makes prolongation
inhuman and degrading. The anguish of alternating hope
and despair, the agony of uncertainty, the consequences
of such suffering on the mental, emotional, and
physical integrity and health of the individual are
vividly described in the evidence of the effect of the
delay in the circumstances of these five cases. We need
not rehearse the facts, which are not in dispute. We do
not doubt that the appellants have proved that they
have been subjected to a cruel and dehumanising
experience
Prolonged delay when it arises from factors
outside the control of the condemned man can render a
decision to carry out the sentence of death an inhuman
and degrading punishment. It is, of course, for the
applicant or constitutional protection to show that the
delay was inordinate, arose from no act of his, and was
likely to cause such acute suffering that the
infliction of the death penalty would be in the
circumstances which had arisen inhuman or degrading
Such a case has been established in our view, by these
appellants."
We added,
"While we entirely agree with Lord Scarman and
Lord Brightman about the dehumanising effect of pro
longed delay after the sentence of death, we enter a
little caveat, but only that we may go further. We
think that the cause of the delay is immaterial when
the sentence
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is death. Be the cause for the delay, the time
necessary A for appeal and consideration of reprieve or
some other cause for which the accused himself may be
responsible, it would not alter the dehumanising
character of the delay."
Thereafter we proceeded to consider the implications of
Art. 21 in the light of Menaka Gandhi, Sunil, Batra, Bachan
Singh, Bhuvan Mohan Patnaik, Pandurang Sangzgiri, Champalal
Plmjaji Shah, Hussainara Khatoon and M.H. Hoskot.We then
said:-
"So, what do we have now ? Articles 14,19 and 21 are
not mutually exclusive. They sustain, strengthen and
nourish each other. They are available to prisoners as
well as free men. Prison walls do not keep out
Fundamental Rights. A person under sentence of death
may also claim Fundamental Rights. The fiat of Article
21, as explained, is that any procedure which deprives
a person of his life or liberty must be just, fair and
reasonable. Just, fair and reasonable procedure implies
a right to free legal services where he cannot avail
them. - It implies a right to a speedy trial. 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. That is as far as we have
gone so far. It seems to us but a short step, but a
step in the right direction, to hold 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 is to quash the sentence of
death. In the United State of America where the right
to a speedy trial is a Constitutionally guaranteed
right, the denial of a speedy trial has been held to
entitle an accused person to the dismissal of the
indictment or the vacation of the sentence (vide Strunk
v. United States [1973] 37 L Ed. 2d S6). Analogy of
American law is not permissible, but interpreting our
Constitution sui generis, as we are bound to do, we
find no impediment in holding that the dehumanising
factor of prolonged delay in the execution of a
sentence of death has the Constitutional implication of
depriving a person of his life in an unjust, unfair and
unreasonable way as to offend the Constitutional
guarantee that no
14
person shall be deprived of his life or personal
liberty except - according to procedure established by
law. The appropriate relief in such a case is to vacate
the sentence of death."
We proceeded to consider what delay could be considered
prolonged enough to attract the Constitutional protection of
Art. 21, We thought that making all responsible allowance
for the time necessary for appeal and consideration of
reprieve, 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 Art. 21 of the
Constitution and demand the quashing of the sentence of
death.
Very shortly after the Court had pronounced its
judgment, in Vatheeswaran’s case, in Sher Singll v. State of
Punjab1) another Divison Bench of three learned Judges of
this Court presided over by Chandrachud, C.J. while
expressing almost complete agreement with most of what had
been said in Vatheeswaran’s case dissented from the opinion
expressed by therein that a delay of two years and more was
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sufficient to entitle a person under sentence of death to
invoke Art. 21 of the Constitution. The learned Judges first
observed:-
"But we must hasten to add that this Court has not
taken the narrow view that the jurisdiction to
interfere with a death sentence can be exercised only
in an appeal against the judgment of conviction and
sentence. The question which arises in such appeals is
whether the extreme penalty provided by law is called
for in the circumstances of the case. The question
which arises in proceedings such as P those before us
is whether, even if the death sentence was the only
appropriate sentence to impose in the case and was
therefore imposed, it will be harsh and unjust to
execute that sentence by reason of supervening events.
In very recent times, the sentence of death has been
commuted to life imprisonment by this Court in quite a
few cases for the reason, inter alia, that the prisoner
was under the specter of the sentence of death for an
unduly LONG time after the final confirmation of that
sentence, consequent upon the dismissal of the
prisoner’s Special Leave Petition or Appeal by this
Court Tradi-
(1) AIR 1983 SC 46S.
15
tionally, subsequent events are taken into account in
the area of civil law. There is no reason why they
should not receive due consideration in other
jurisdictions, particularly when their relevance on the
implementation or execution of judicial verdicts is
undeniable. Undoubtedly, principles analogous to
resjudicata govern all judicial proceedings but when
new SITUATIONS emerge, particularly factual, after a
verdict has assumed finality in the course of the
hierarchical process, advertence to those situations is
not barred on the ground that a final decision has been
rendered already. That final decision is not a decision
on new facts. Courts are never powerless to do justice,
that is say, to ensure that the processes of law do not
result in undue misery, suffering or hardship That is
why, even after the final seal of approval is placed
upon a sentence of death, this Court has exercised its
power to direct, ex debito justitiae, that though the
sentence was justified when passed, its execution, in
the circumstances of the case, is not justified by
reason of the unduly long time which has elapsed since
the confirmation of that sentence by this Court. Some
of us dealing with this case have been parties to
decisions directing in appropriate cases, that the
death sentence shall not be executed by reason of
supervening circumstances."
They then proceeded to agree with our agreement with
the view expressed by Lord Scarman and Lord Brightman. They
said:-
"Like our learned Brethren, we too consider that the
. view expressed in this behalf by Lord Scarman and
Lord Brightman in the Privy Council decision of Neel
Riley 1982 Crl. Law Review 679 is. with respect,
correct. The majority in that case did not pronounce
upon this matter The minority expressed the opinion
that the jurisprudence of the civilized world has
recognized and acknowledged that prolonged delay in
executing a sentence of death can make the punishment
when it comes inhuman and degrading. Sentence of death
is one thing; sentence of death followed by lengthy
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imprisonment prior to execution is another. The
prolonged anguish of alternating hope and despair, the
agony of uncertainty, the consequences of such
suffering on the mental, emotional
16
and physical integrity and health of the individual can
render A the decision to execute the sentence of death
an inhuman and degrading punishment in the
circumstances of a given case."
After referring to Robert Johnson’s ’Condemned to die,
life under sentence of death’, they observed:
"A prisoner who has experienced living death for
years on end is therefore entitled to invoke the
jurisdiction of this Court for examining the question
whether, after all the agony and torment he has been
subjected to, it is just and fair to allow the sentence
of death to be executed. That is the true implication
of Art. 21 of the Constitution and to that extent, we
express our broad and respectful agreement with our
learned Brethren in their visualisation of the meaning
of that article. The horizons of Art. 21 are ever
widening and the final word on its conspectus shall
never have been said. So long as life lasts, so long
shall it be the duty and endeavour of this Court to
give to the provisions of our Constitution a meaning
which will prevent human suffering and degradation.
Therefore, Art. 21 is as much relevant at the stage of
execution of the death sentence as it is in the
interregnum between the imposition of that sentence and
its execution. The essence of the matter is that all
procedure, no matter what the stage, must be fair, just
and reasonable. It is well established that a prisoner
cannot be tortured or subjected to unfair or inhuman
treatment (See Prabhnkar Pandurang Sanzgiri (AIR 1966
SC 424), Bhuvau Mohan Patniak (AIR 1974 SC 2092) and
Sunil Batra (AIR 1978 SC,j,167S). It is a logical
extension of the selfsame principle that the death
sentence, even if justifiably imposed, cannot be
executed if supervening events make its execution
harsh, unjust or unfair. Art. 21 stands like a sentinel
over human misery, degradation and oppression. Its
voice is the voice of justice and fairplay. That voice
can never be silenced on the ground that the time to
heed to its imperatives is long since past in the story
of a trial. It reverberates through all stages-the
trial, the sentence, the incarceration and finally, the
execution of the sentence,"
17
After saying so much, the learned Judges found it
impossible A to agree, with that part of the judgment in
T.V. Vatheesawaran v. State of Tamil Nadu (supra), where it
had been said that delay exceeding two years in executing a
sentence of death should be considered sufficient to entitle
the person under sentence of death to invoke Att. 21 and
demand the quashing of the sentence of death. The reason
was, they said "The fixation of time limit of two years does
not seem to us to accord with the common experience of the
time normally consumed by the litigative process and the
proceedings before the executive." They also said that
besides delay there were also other factors to be taken into
account while considering the question whether the sentence
of death should be vacated. The observations of the learned
Judges purporting to dissent from the view taken in
T’atheeswaral1’s case were made, curiously enough, while
admitting ,SherSingh’s petition on other grounds. It was
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perhaps thought desirable and necessary to express firmly
their views on one of the questions raised which they were
not accepting while admitting the petition on other
questions lest further damage be done to the cause of
justice by following the wrong rule thought to have been
laid down in Vatheeswaran’s case and unworthy people saved
from the gallows. We do not wish to dwell any further on
this aspect of the matter except to point out that as far as
we know Referred Trials and Confirmation Cases are 1 dealt
with speedily by High Courts and are never kept pending
longer than two or three months. It is only when they reach
this Court that the delay occurs. But surely, our inability
to devise a procedure to deal expeditiously with such
matters of life and death can be no justification for
silencing what the learned Chief Justice has himself so
eloquently described as ’the voice of justice and fairplay’
which demands that ’so long as life lasts, so long shall it
be the duty and endeavour of this Court to give to the
provisions of our Constitution’ a meaning which will prevent
human suffering and degradation. ’Tlle case also raises the
further question whether a Division Bench of three Judges
can purport to over rule the JUDGMENT of a Division Bench of
two judges merely because three is larger than two. The
Court sits in Divisions of two and three judges for the sake
of convenience and it may be in-appropriate for a Division
Bench of three judges to purport to overrule the decision of
a Division Bench of two judges. Vide Young v. Bristol
Aeroplane Co. Ltd.(l) It may be otherwise where a full Bench
or a Constitution Bench does so.
18
We do not however desire to embark upon this question in
this case. In the present case we are satisfied that an over
all view of all the circumstances appears to us to entitle
the petitioner to invoke the protection of Art. 21 of the
Constitution. We accordingly quash the sentence of death and
substitute in its place the sentence of imprisonment for
life.
H.S.K. Petition allowed.
(5) 1944 (2) ALL ER. 293
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