Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
T.V. VATHEESWARAN
Vs.
RESPONDENT:
STATE OF TAMIL NADU
DATE OF JUDGMENT16/02/1983
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
MISRA, R.B. (J)
CITATION:
1983 AIR 361 1983 SCR (2) 348
1983 SCC (2) 68 1983 SCALE (1)115
ACT:
Constitution of India-Art. 21-Prisoner sentenced to
death-Detcntion awaiting execution-Detention excceding two
years violative of guarantee of Fair procedure under Art.
21.
HEADNOTE:
The appellant was sentenced to death in January, 1975
on a charge of committing wicked and diabolic murders and
since then he was in solitary confinement. Before
conviction. he had been a ’prisoner under remand’ for two
years.
The appellant’s contention was that to take away his
life after keeping him in jail for ten years, eight of which
in illegal solitary confinement, would be violative of Art.
21.
Allowing the appeal and converting the sentence of
death to one of imprisonment for life,
^
HELD: 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 so 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. Making all reasonable allowance for the
time necessary. for appeal and consideration of reprieve, a
delay exceeding two years in the execution of a sentence of
death should be considered sufficient to entitle the person
under sentence of death to invoke Art. 21 and demand the
quashing of the sentence of death. [359 G-H, 360 D-E]
(i) A convict is entitled to the precious right
guaranteed in Art. 21. The right to a speedy trill is
implicit in the right to a fair trial which has been held to
be part of the right to life and liberty guaranteed by this
Article.
[357 D, 357 G-H, 358 A]
Bhuvan Mohan Patnaik v. State of A.P., [1975] 2 S.C.R.
24; Sunil Batra v. Delhi Administration, [1979] 1 S.C.R.
392; State of Maharashtra v. Prabhakar Pandurang Sanpzgiri &
Anr., [1966] 1 S.C.R. 702; State of, Maharashtra v.
Champalal, A.l.R. [1981] S.C. 1675; Hussainara Khatoon (I)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
v. Home Secretary, [1980] 1 S.C.C. 81 and Hussainara Khatoon
(IV) v. Home Secretary, [1980] 1 S.C.C. 98 referred to.
349
(ii) Tho Sat of Art. 21 is that any procedure which
deprives a person of his life or liberty must be just, fair
and ’reasonable. It implies humane conditions of detention,
preventive or punitive. ’Procedure established by law’ does
not end with the pronouncement of sentence; it includes the
carrying out of sentence. 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 [359 D-E, 359 G-H, 360 A]
Maneka Gandhi v. Union of India, [1978] 2 S.C.R. 621,
Sunil Batra v. Delhi Administration, [1979] 1 S.C.R. 392 and
Bachan Singh v. State of Punjab, A.I.R. [1980] S.C. 898
referred to.
(iii) Sentence of death is one thing; sentence of death
followed by lengthy imprisonment prior to execution is
another. A period of anguish and suffering is an inevitable
consequence of sentence of death, but a prolongation of it
beyond the time necessary for appeal and consideration of
retrieve is not. And, it is no answer to say that the man
will struggle to stay alive. In truth, it is this
ineradicable, human desire which makes prolongation inhuman
and degrading with its anguish of alternating hope and
despair, the agony of uncertainty and the consequences of
such suffering on the mental, emotional and physical
integrity and health of the individual. Where, after the
sentence of death is given, the accused is made to undergo
inhuman, and degrading punishment or where the execution of
the sentence is endlessly delayed and the accused is made to
super the most excruciating agony and anguish, it is open to
a court of appeal or a court exercising writ jurisdiction,
in an appropriate proceeding, to take note Of the
circumstance when it is brought to its notice and give
relief where necessary. [352 E-G, 350 F, 360 E]
Noel Riley & Ors. v. The Attorney General & Anr.,
[1982] Crl. Law Review 679; Piaradusadh Y. Emperor, A.I.R.
1944 F.C. 1; Ediga Annamma v. State of Andhra Pradesh,
[1974] 3 S.C.R. 329; State of U.P. v. Lalla Singh, A.I.R.
[1978] S.C 168; Bhagwan Baux Singh v. State of U.P., A.I R
[1978] S.C. 34; Sadhu Singh v. State of U.P., A.I.R. [1978]
S.C. 1506; State of U.P. v. Sahai, A.I.R. [1981] S.C. 1442
and Furman v. State of Georgia, 408 U.S. 238, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 75
of 1983.
Appeal by Special leave from the Judgment and order
dated the 20th December, 1976 of. the Madras High Court in
Criminal Appeal No. 182 of 1975 and Referred Trial No. 11 of
1975.
R.K Garg and R. Satish for the Appellant/Petitioner.
A.V. Rangam for the Respondent.
The order of the Court was delivered by
350
CHINNAPPA REDDY, J. A prisoner condemned to death over
eight years ago claims that it is not lawful to hang him
now. Let us put the worst against him first. He was the
principal accused in the case and, so to say, the arch-
villian of a villainous piece. He was the brain behind a
cruel conspiracy to impersonate Customs officers’ pretend to
question unsuspecting visitors to the city of Madras, abduct
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
them on the pretext of interrogating them, administer
sleeping pills to the unsuspecting victims steal their cash
and jewels and finally murder them. The plan was ingeniously
fiendish and the appellant was the architect. There is no
question that the learned Sessions Judge very rightly
sentenced him to death But that was in January 1975. Since
then he has been kept in solitary confinement, quite
contrary to our ruling in Sunil Batra v. Delhi Administra-
tion(1). Before that he was a ’prisoner under remand’ for
two years. So, the prisoner claims that to take away his
life after keeping him in jail for ten years, eight of which
in illegal solitary confinement, is a gross violation o the
Fundamental Right guaranteed by Art. 21 af the Constitution.
Let us examine his claim. First let us get rid of the
cobwebs of prejudice Sure, the murders were wicked and
diabolic. The appellant and his friends 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 are 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 writ jurisdiction, in an appropriate proceeding,
to take note of the circumstance when it is brought to its
notice and give relief where necessary?
Before adverting to the constitutional implications of
prolong ed delay in the execution of a sentence of death,
let us refer to the judicial attitude towards such delay in
India and elsewhere.
In Piaradusadh v. Emperor(2), the Federal Court of
India took into consideration the circumstance that the
appellant had been
351
awaiting the execution of the death sentence for over a year
to alter the sentence to one of transportation for life.
In Ediga Annamma v. State af Andhra Pradesh(l), Krishna
Iyer and Sarkaria, JJ observed that "the ’brooding horror of
hanging’ which has been haunting the prisoner in her
condemned cell for over two years" had an "ameliorative
impact" and was "a factor of humane significance in the
sentencing context".
In State of U.P. v. Lalla Singh(2) Gupta and Kailasam,
JJ, were dealing with a case of gruesome murder of three
persons, the head of one of whom was severed. The learned
judges, while of the view that the Sessions Judge was
perfectly in order in imposing the sentence of death,
thought that as the offences had been committed More than
six years ago, the ends of justice did not require the
sentence of death to be confirmed.
In Bhagwan Baux Singh v. State of U.P.(3), the sentence
of death was commuted to imprisonment for life by Murtaza
Fazal Ali and Kailasam, JJ, having particular regard to the
fact that the sentence of death had been imposed more than
two and a half years ago.
In Sadhu Singh v. State of U.P.(4), Sarkaria, Sen, JJ,
and one of us (Chinnappa Reddy, JJ took into account the
circumstance that the appellant was under spectre of the
sentence of death for over three years and seven months to
alter the sentence of death to one of imprisonment for life.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
In State of U.P. v. Sahai(5), Murtaza Fazal Ali,
Baharul Islam and Varadarajan, JJ, while holding that the
murders were ’extremely gruesome, brutal and dastardly’,
nonetheless declined to pass the sentence of death on the
ground that more than eight years had elapsed since the
occurrence.
In Furman v. State of Georgia(6), Justice Brennan
observed, "The prospect of pending execution exacts a
frightful toll during the
352
inevitable long wait between the imposition of sentence and
the actual infliction of death".
In Noel Riley and Ors. v. The Attorney General and
Another(1) the majority of the Lords of the Judicial
Committee of the Privy Council expressed no opinion on the
question whether the delayed execution of a sentence of
death by hanging could be described as "inhuman or degrading
punishment". But Lord Scarman and Lord Brightman who gave
the minority opinion, after referring. to the British
practice and Furman v. State of Georgia, People v. Chessman,
People v. Anderson, Ediga Anamma v. State of Andhra Pradesh,
Rajendra Prasad v. State of U.P. and Tyrer v. United
Kingdom, 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 punishment in the English
Bill of Rights, has recognised and acknowledged that
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’s case (supra), 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 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 ...........................................
353
"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 for 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."
While we entirely agree with Lord Scarman and Lord
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
Brightman about the dehumanising effect of prolonged 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 is death. Be the cause
for the delay, the time necessary 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.
What are the constitutional implications of the
dehumanising factor of prolonged delay in the execution of a
sentence of death? Let us turn at once to Art. 21 of the
Constitution, for, it is to that article that we must first
look for protection whenever life or liberty is threatened.
Art. 21 says: "No person shall be deprived of his life or
personal liberty except according to procedure established
by law." The dimensions of Art. 21 which at one time
appeared to be constricted by A.R. Gopalan v. State of
Madras(1) have been truly expanded by Maneka Gandhi v. Union
of India(2) and Sunil Batra etc. v. Delhi Administration.(3)
In Maneka Gandhi v. Union of India(2), it was held that
the various articles of the Constitution in Chapter III
(Fundamental Rights) were not several, isolated walled
fortresses, each not reacting on the other, but, on the
other hand, were parts of a great scheme to secure certain
basic rights to the citizens of the country, each article
designed to expand but never to curtail the content of the
right secured by the other article. No article was a
complete code in
354
itself and several of the Fundamental Rights guaranteed by
Chapter Ill of the Constitution overlapped each other. So, a
law satisfying the requirements of Art. 21 would still have
to meet the challenge of Art. 14 and Art. 19 of the
Constitution. In regard to Art. 21 itself, it was held that
the procedure contemplated by the article had to be fair,
just and reasonable, and not some semblance of procedure,
fanciful, oppressive or arbitrary. Chandrachud. J, (as he
then was) said:
"But the mere prescription of some kind of
procedure cannot ever meet the mandate of Art. 21. The
procedure prescribed by law has to be fair, just and
reasonable, not fanciful, oppressive or arbitrary."
Chandrachud, J. expressed his total agreement with
Bhagawati, J’s following observations:
"The law must, therefore, now be taken to be well
settled that article 21 does not exclude article 19 and
that even if there is a law prescribing a procedure for
depriving a person of ’personal liberty’ and there is
consequently no infringement of the fundamental right
conferred by article 21, such law, in so far as it
abridges or takes away any fundamental right under
article 19 would have to meet the challenge of that
article.’
Bhagwati, J. further observed:
"But apart altogether from these observations in
A.K Gopalan’s case, which have great weight, we find
that even on principle the concept of reasonableness
must be projected in the procedure contemplated by Art.
21, having regard to the impact of Art. 14 on Art. 21."
Again he said:
"The principle of reasonableness, which legally as
well as philosophically, is an essential element of
equality or non-arbitrariness pervades Art. 14 like a
brooding omnipresence and the procedure contemplated by
Art. 21 must answer the test of reasonableness in order
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
to be in conformity with Art. 14. It must be "right and
just and fair" and pot arbitrary, fanciful or
oppressive; otherwise, it would be
355
no procedure at all and the requirement of Art. 21
would A not be satisfied."
In Sunil Batra v. Delhi Administration(1), Krishna
Iyer, J. while dealing with the question whether solitary
confinement could be indicted on a person awaiting death
sentence, observed: B
"True our Constitution has no ’due process’ clause
or the VIII Amendment; but, in this branch of law,
after Cooper and Maneka Gandhi, the consequence is the
same. For what is punitively outrageous, scandalizingly
unusual or cruel and rehabilitatively counter-
productive, is unarguably unreasonable and arbitrary
and is shot down by " Arts. 14 and 19 and if inflicted
with procedural unfairness, falls foul of Art. 21. Part
III of the Constitution does not part company with the
prisoner at the gates, and judicial oversight protects
the prisoner’s shrunken fundamental rights, if flouted,
frowned upon or frozen by the prison D authority. Is a
person under death sentence or under trial unilaterally
dubbed dangerous liable to suffer extra torment too
deep for tears? Emphatically no, lest social justice,
dignity of the individual, equality before the law,
procedure established by law and the seven lamps of
freedom (Art. 19) become chimerical constitutional
claptrap."
In the same case, Desai, J. said:
"The word "law" in the expression "procedure
established by law" in Art. 21 has been interpreted to
mean in Maneka Gandhi’s case (supra) that the law must
be right, just and fair, and not arbitrary, fanciful or
oppressive. otherwise it would be no procedure at all
and the requirement of Art. 21 would not be satisfied.
If it is arbitrary it would be violative of Art. 14."
In Bachun Singh v. State of Punjab(2) Sarkaria, J.
summarised the effect of Maneka Gandhi in these words:
356
"In Maneka Gandhi’s case, which was a decision by
a Bench of seven learned Judges, it was held by
Bhagwati, J. his concurring judgment, that the
expression ’personal liberty’ in Art. 21 is of the
widest amplitude and it covers a variety of rights
which go to constitute the personal liberty of man and
some of them have been raised to the status of distinct
fundamental rights under Art. 19. It was further
observed that Arts. 14, 19 and 21 are not to be
interpreted in water-tight compartments, and
consequently, a law depriving a person of personal
liberty and prescribing a procedure for that purpose
within the meaning of Art. 21 has to stand the test of
one or more of the fundamental rights conferred under
Art. 19 which may be applicable in a given situation,
ex-hypothesi it must also be liable to be tested with
reference to Art. 14. The principle of reasonableness
pervades all the three articles, with the result, that
the procedure contemplated by Art. 21 must be ’right
and just and fair’ and not ’arbitrary, fanciful or
oppressive’ otherwise it should be no procedure at all
and the requirement of Art. 21 would not be satisfied".
The learned judge then referred to Art. 21 and said,
"If this article is expanded in accordance with
the interpretative principle indicated in Maneka
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
Gandhi, it will read as follows:
"No person shall be deprived of his life or
personal liberty except according to fair, just and
reasonable procedure established by valid law". In the
converse positive form, the expanded Article will read
as below:
"A person may be deprived of his life or personal
liberty in accordance with fair, just and reasonable
procedure established by valid law".
"Thus expanded and read for interpretative
purposes, Art. 21 clearly brings out the implication,
that the Founding Fathers recognised the right of the
State to deprive a person of his life or personal
liberty in accordance with fair, just and reasonable
procedure established by valid law".
357
The question whether a prisoner under a lawful sentence
of A’. death or imprisonment could claim Fundamental Rights
was considered in Bhuvan Mohan Patnaik v. State of A.P.(l).
Chandrachud, J. (as he then was) declared:
"Convicts are not, by mere reason of the
conviction. denuded of all the Fundamental Rights which
they other-wise possess. A compulsion under the
authority of law, following upon a conviction, to live
in a prison house entails to by its own force the
deprivation of fundamental freedoms like the right to
move freely throughout the territory of India or the
right to "practise" a profession. A man of profession
would thus stand stripped of his right to hold
consultations while serving out his sentence. But the
Constitution guarantees other freedoms like the right
to acquire, hold and dispose of property for the
exercise of which incarceration can be no impediment.
Likewise, even convict is entitled to the precious
right guaranteed by Article 21 of the Constitution that
he shall not be deprived of his life or personal
liberty except according to procedure established by
law".
The declaration of Chadrachud, I. in Bhuvan Mohan
Patniak’s case was quoted with approval and accepted by the
Constitution Bench in Sunil Batra v. Administration (supra).
We may also refer here to State of Maharashtra v.
Prabhakar Pandurang Sangzgiri and Anr’(2) where a
Constitution Bench repelled the argument that the Bombay
Conditions of Detention order 1951 conferred privileges but
not rights on the detenu with the p observation:
"If this argument were to be accepted, it would
mean that the detenu could be starved to death if there
was no condition providing for giving food to the
detenu".
The Court has also recognised that the right to life
and liberty guaranteed by Art. 21 of the Constitution
includes the right to a speedy trial. The right to a speedy
trial may not be an expressly guaranteed constitutional
right in India, but it is implicit in the
358
right to a fair trial which has been held to be part of the
right to life and liberty guaranteed by Art.21 of the
Constitution. After referring to situations where an accused
person may be seriously jeopardised in the conduct of his
defence with the passage of time, it was observed by one of
us in State of Maharashtra v. Champalal(l):
"Such situations, in appropriate cases, we may
readily infer an infringement of the right to life and
liberty guaranteed by Art. 21 of the Constitution.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
Denial of a speedy trial may with or without proof of
something more lead to an inevitable inference of
prejudice and denial of justice. It is prejudice to a
man to be detained without trial. It is prejudice to a
man to be denied a fair trial. A fair trial implies a
speedy trial."
Earlier in Hussainara Khatoon (I) v. Home Secretary(2),
it was observed by Bhagwati. J.:
"If a person is deprived of his liberty under a-
procedure which is not "reasonable, fair or just", such
deprivation would be violative of his fundamental right
under Art. 21 and he would be entitled to enforce such
fundamental right and secure his release. Now obviously
procedure prescribed by law for depriving a person of
his liberty cannot be ’reasonable, fair or just’ unless
that procedure ensures a speedy trial for determination
of the guilt of such person. No procedure which does
not ensure a reasonably quick trial can be regarded as
’reasonable, fair or just’ and it would fall foul of
Art. 21. There can, therefore, be no doubt that speedy
trial, and by speedy trial we mean reasonably
expeditious trial, is an integral and essential part of
the fundamental right to life and liberty enshrined in
Art. 21."
In Hussainara Khatoon (IV) v. Home Secretary(3), the
principle was re-affirmed and Bhagwati, J. added:
"Speedy trial is, as held by us in our earlier
judgment dated February 26, 1979, an essential
ingredient of ’reason-
359
able, fair and just’ procedure guaranteed by Art. 21
and it is the constitutional obligation of the State to
devise such a procedure as would ensure speedy trial to
the accused."
In the same case, it was further observed that the right to
free legal services was implicit in Art. 21 as no procedure
could be said to be reasonable, fair and just which did not
provide for legal service to those who could not secure them
themselves. That free legal services to the poor and the
needy was an essential element of any reasonable, fair and
just procedure had already been decided in M:H. Hoskot v.
State of Maharashtra(l).
So, what do we have now? Arts. 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 Art. 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 detection, preventive or
punitive. ’Procedure established by law’ does not end with
the pronouncement of sentence; it includes tho 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 States 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(2).
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
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 person shall be
deprived of his life or personal liberty except
360
according to procedure established by law. The appropriate
relief in such a case ii tn vacate the sentence of death.
What may be considered prolonged delay so as to attract
the constitutional protection of Art. 21 against the
execution of a sentence of death is a ticklish question. In
Ediga Annamma’s case, two years was considered sufficient to
justify interference with the sentence of death. In Bhagwan
Baux’s case, two and a half years and in Sadhu Singh’s case,
three and a half years were taken as sufficient to justify
altering the sentence of death into one of imprisonment for
life. The Code of Criminal Procedure provides that a
sentence of death imposed by a court of Session must be
confirmed by the High Court. The practice, to our knowledge,
has always been to give top priority to the hearing of such
cases by the High Courts. So, also in this Court. There are
provisions in the Constitution (Arts. 72 and 161) which
invest the President and the Governor with power to suspend,
remit or commute a sentence of death. Making all reasonable
allowance for the time necessary for appeal and considered
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 Art. 21 and demand the quashing of the sentence of
death. We therefore accept the special leave petition, allow
the appeal as also the Writ Petition and quash the sentence
of death. In the place of the sentence of death, we
substitute the sentence of imprisonment for life.
H.L.C. Appeal allowed.
361