Sonu Sardar vs.the Union of India & Anr - Court Judgment

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$~ * % in the high court of delhi at new delhi9h march, 2017 judgment reserved on: judgment pronounced on:28. h june, 2017 + w.p.(crl) 441/2015 sonu sardar ........ petitioner through dr.yug mohit chaudhary, adv. with ms.g.m.padma priya, mr.rishabh sancheti, mr.ashish virmani, ms.parijata bhardwaj & ms.ragini ahuja, advs. the union of india & anr versus ........ respondents through mr.navin chawla, adv. with mr.sumit rajput & mr.aditya v. singh, advs. for r-1/uoi. mr.atul jha, adv. with mr.sandeep jha, adv. of chhattisgarh. for r-2/state coram: hon'ble mr. justice g.s.sistani hon'ble mr. justice vinod goel g.s.sistani, j.1. present petition has been instituted by the parokar of sonu sardar (hereinafter referred to as the „petitioner‟) under article 226 of the constitution of india read with section 482 of the code of criminal procedure for quashing the orders of the president of india and the governor of chhattisgarh rejecting the mercy petition of the petitioner and to commute the death sentence of the petitioner into life imprisonment on account of delay, improper exercise of power and illegal solitary confinement. w.p. (crl) 441/2015 page 1 of 95 2. we may note that after this court had issued notice in the present writ petition on 02.03.2015, the state of chhattisgarh had preferred a transfer petition [transfer petition (crl.) 297/2016]. before the supreme court of india and at the same time, moved an application bearing crl.m.a. 3651/2015 before this court for the dismissal of the petition on the ground that this court lacked territorial jurisdiction to entertain the present petition. by a detailed judgment dated 06.12.2016, this bench had dismissed the application of the state of chhattisgarh/respondent no.2, which has been reported as sonu sardar v. union of india and anr., 235 (2016) dlt530 we are informed that the state of chhattisgarh filed a petition for special leave to appeal [slp (crl.) 131/2017]. before the supreme court. on 12.01.2017, while hearing the transfer petition, the supreme court requested this court to decide the writ petition on its own merits. in view of the order, the slp has also been disposed of on 13.01.2017. thereafter, none of the parties approached this court seeking an early hearing in the matter; but waited till 16.02.2017, i.e. the date fixed. since then the matter was heard on a daily basis on 16.02.2017, 20.02.2017, 21.02.2017, 27.02.2017, 28.02.2017, 01.03.2017, 02.03.2017, 06.03.2017 and finally reserved on 09.03.2017.3. the petitioner is a death-row convict who has been convicted and sentenced to death by the trial court by a judgment dated 27.02.2008. the facts leading to the filing of the present petition are as follows: (i) on 26.11.2004, shamim akhtar, a scrap dealer, his driver asgar ali, his wife ruksana bibi, daughter rana and son yakub were at home when five persons came there at about 7.00 p.m. on the w.p. (crl) 441/2015 page 2 of 95 pretext of selling scrap. they accosted shamim akhtar and demanded money from him by putting a knife to his throat. at that time, shamim‟s 9 years old daughter shabana escaped from the back door. she went to ramlal‟s house and informed him about what was happening in the house. ramlal attempted to go to shamim‟s house but shabana stopped him by saying that he should not go as he too would be assaulted. so, he did nothing for 10 hours. at 5.00 a.m. in the morning, when they went to the house, they found the dead bodies of the aforementioned five persons. the petitioner was arrested on 29.11.2004. (ii) the trial court, vide its order dated 27.02.2008, convicted the petitioner and his co-accused under section 396 of the indian penal code and finding the crime to be rarest of the rare, sentenced them to death. (iii) later on, the high court of chhattisgarh on 08.03.2010 confirmed the death sentence of the petitioner while declaring the co-accused to be a juvenile and referring his case to the juvenile justice board. (iv) thereafter, the supreme court on 23.02.2012 upheld the death sentence by dismissing the appeal filed by the petitioner [sonu sardar v. state of chhattisgarh, (2012) 4 scc97. (v) the petitioner submitted a mercy petition dated 20.03.2012, which was rejected by the governor on 08.04.2013 and by the president on 05.05.2014. (vi) on 24.05.2014, the petitioner through his lawyers wrote a letter to the president of india pointing out that his mercy petition had w.p. (crl) 441/2015 page 3 of 95 been dismissed on the basis of his being 23 years of age on the date of offence when, in fact, he was 18 years and 2 months old at that time. in may, 2014, the petitioner filed a review petition before the supreme court, inter alia on the same ground. (vii) the petitioner also filed a writ petition before the supreme court praying that his death sentence be stayed during the pendency of his review petition and for open hearing of death sentence review petitions. (viii) thereafter, the review petition of the petitioner was ordered to be listed in open court. however, the review petition filed by the petitioner was dismissed by a judgment dated 10.02.2014. (ix) on 14.02.2015, the petitioner‟s lawyers by hand delivered a letter to the jail superintendent, central jail, raipur advising the prison authorities against initiating black warrant proceedings, as the letter dated 24.05.2014 was still pending before the president of india. (x) the present writ petition has been filed on 26.02.2015.4. extensive arguments have been made before us. the arguments of the dr.chaudhary, learned counsel for the petitioner, can be summarized in seriatim as under: (i) delay in adjudication of the mercy petition; (ii) solitary confinement; and (iii) improper exercise of power.5. we deem it appropriate to deal with the contentions under different heads. delay w.p. (crl) 441/2015 page 4 of 95 6. it is the submission of the learned counsel for the petitioner that the delay of 2 years 2 months in this case was avoidable.7. learned counsel contends that the supreme court has held that the delay violates fair, just and reasonable procedure and the test is whether the delay was an avoidable delay in the adjudication of a mercy petition. at the same time, he concedes that the delay caused by a prisoner cannot be the basis of commutation, but states that in the present case, neither there is any delay caused by the petitioner nor any delay has been attributed to him.8. since the law is no longer res integra as having been considered over a long line of judicial pronouncements since nineteen eighties, we deem it appropriate to trace its development prior to dealing with the contentions of the parties.9. in the year 1983, the supreme court for the first time recognized that additional suffering inflicted on a death-row convict by delayed execution of death sentence was unconstitutional in the case of t.v. vatheeswaran v. state of t.n., (1983) 2 scc68 the division bench of the supreme court held that the delay beyond 2 years in executing death sentence would entitle the convict to commutation to life imprisonment. relevant paragraphs of the said judgment read as under: in furman v. state of georgia [408 us238:33. l ed “9. 2d 346 (1972).]. justice brennan observed: ―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.‖ in noel riley v. attorney-general [1982 criminal 10. law review 679.]. the majority of the lords of the judicial w.p. (crl) 441/2015 page 5 of 95 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 [408 us238:33. l ed 2d 346 (1972).]. people v. chessman, people v. andersen, ediga anamma v. state of a.p.[(1974) 4 scc443:1974. scc (cri) 4 (1974) 3 scr329 , rajendra prasad v.state of u.p. [(1979) 3 scc646:1979. scc (cri) 749.]. and tyrer v. united kingdom, said: from common law principles and ―it is no exaggeration, therefore, to say that the jurisprudence of the civilised world, much of which is derived the prohibition against cruel and unusual punishments 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 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 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 w.p. (crl) 441/2015 page 6 of 95 to a cruel and dehumanising been subjected 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 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.‖ 11. while we entirely agree with lord scarman and lord 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, the dehumanising character of the delay. … 16. the question whether a prisoner under a lawful sentence of death or imprisonment could claim fundamental rights was considered in bhuvan mohan patnaik v. state of a.p. [1974 scc (cri) 8 (1975) 3 scc185: air1974sc2092: (1975) 2 scr24 chandrachud, j.(as he then was) declared: it would not alter ―convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. a compulsion under the authority of law, following upon a conviction, to live in a prison-house entails 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 w.p. (crl) 441/2015 page 7 of 95 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 a 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.‖ … 20. 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 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 (vide strunk v. united states [(1973) 37 l ed2 56.]. ). 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 sentence of the w.p. (crl) 441/2015 page 8 of 95 personal liberty except according to procedure established by law. the appropriate relief in such a case is to vacate the sentence of death.‖ 21. …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. 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 sentence of imprisonment for life.” substitute the (emphasis supplied) 10. we may add that the underlined observations in paragraph 21 did not find favour with the apex court in smt.triveniben v. state of gujarat, (1988) 4 scc574and were thus, overruled. we shall revert to this aspect later.11. the jurisprudence was further advanced in the case of sher singh & others v. state of punjab, (1983) 2 scc344 wherein a bench of three judges held that the clock for computing delay starts from the judgment of the supreme court finally confirming the death penalty and the delay occasioned at the instance of the convict himself must be factored out while computing the same. the court further went on to hold that there cannot be any rule of thumb whereby delay of 2 years would ipso facto commute the punishment to imprisonment for life. y.v. chandrachud, c.j.giving the opinion for the bench explained the rationale for the same as below: “11. 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 w.p. (crl) 441/2015 page 9 of 95 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 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 spectre 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. traditionally, 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 res judicata 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 to 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 justiciae, 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.” (emphasis supplied) w.p. (crl) 441/2015 page 10 of 95 12. in respect of delay, the apex court held as under: ―16. 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 article 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 article 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, article 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 prabhakar pandurang sangzgiri [state of maharashtra v. prabhakar pandurang sangzgiri, air1966sc424: (1966) 1 scr702: (1966) 1 scj679:1966. cri lj311 , bhuvan mohan patnaik [b. bhuvan mohan patnaik v. state of a.p., (1975) 3 scc185:1974. scc (cri) 8 air1974sc2092: (1975) 2 scr24 and sunil batra [(1978) 4 scc494:1979. scc (cri) 1 air1978sc1675: (1979) 1 scr392:1978. cri lj1741 ). it is a logical extension of the self-same principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust or unfair. article 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. w.p. (crl) 441/2015 page 11 of 95 two years purports fixed time necessary to have been … 18. what we have said above delineates the broad area of agreement between ourselves and our learned brethren who decided vatheeswaran. we must now indicate with precision the narrow area wherein we feel constrained to differ from them and the reasons why. prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed. but, according to us, no hard and fast rule can be laid down as our learned brethren have done that ―delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence to death to invoke article 21 and demand the quashing of the sentence of death‖. this period of in vatheeswaran after making ―all reasonable allowance for the for appeal and consideration of reprieve‖. with great respect, we find it impossible to agree with this part of the judgment. one has only to turn to the statistics of the disposal of cases in the high court and the supreme court to appreciate that a period far exceeding two years is generally taken by those courts together for the disposal of matters involving even the death sentence. very often, four or five years elapse between the imposition of death sentence by the sessions court and the disposal of the special leave petition or an appeal by the supreme court in that matter. this is apart from the time which the president or the governor, as the case may be, takes to consider petitions filed under article 72 or article 161 of the constitution or the time which the government takes to dispose of applications filed under sections 432 and 433 of the code of criminal procedure. it has been the sad experience of this court that no priority whatsoever is given by the government of india to the disposal of petitions filed to the president under article 72 of the constitution. frequent reminders are issued by this court for an expeditious disposal of such petitions but even then the petitions remain undisposed of for a long time. seeing that the petition for reprieve or commutation is not being w.p. (crl) 441/2015 page 12 of 95 attended to and no reason is forthcoming as to why the delay is caused, this court is driven to commute the death sentence into life imprisonment out of a sheer sense of helplessness and frustration. therefore, with respect, the fixation of the 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.19. apart from the fact that the rule of two years runs in the teeth of common experience as regards the time generally occupied by proceedings in the high court, the supreme court and before the executive authorities, we are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprisonment. there are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated. a convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid of the sentence of death imposed upon him and indeed, there is no one, be he blind, lame, starving or suffering from a terminal illness, who does not want to live. the vinoba bhaves, who undertake the ―prayopaveshana‖ do not belong to the world of ordinary mortals. therefore, it is understandable that a convict sentenced to death will take recourse to every remedy which is available to him under the law to ask for the commutation of his sentence, even after the death sentence is finally confirmed by this court by dismissing his special leave petition or appeal. but, it is, at least, relevant to consider whether the delay in the execution of the death sentence is attributable to the fact that he has resorted to a series of untenable proceedings which have the effect of defeating the ends of justice. it is not uncommon that a series of review petitions and writ petitions are filed in this court to challenge judgments and orders which have assumed finality, without any seeming justification. stay orders are obtained in those proceedings and then, at the end of it all, comes the argument that there has been w.p. (crl) 441/2015 page 13 of 95 prolonged delay in implementing the judgment or order. we believe that the court called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it. if this is not done, the law laid down by this court will become an object of ridicule by permitting a person to defeat it by resorting to frivolous proceedings in order to delay its implementation. and then, the rule of two years will become a handy tool for defeating justice. the death sentence should not, as far as possible, be imposed. but, in that rare and exceptional class of cases wherein that sentence is upheld by this court, the judgment or order of this court ought not to be allowed to be defeated by applying any rule of thumb.” (emphasis supplied) 13. even though the bench held that no rule of thumb can be applied, it impressed upon the governments to apply a „self-imposed‟ rule of three months. the relevant portion of the judgment is extracted as below: “23. we must take this 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 must be disposed of expeditiously. a self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice. several instances can be cited, to which the record of this court will bear testimony, in which petitions are pending before the state governments and the government of india for an inexplicably long period. the latest instance is to be found in criminal writ petitions nos. 345-348 of 1983, from which it would appear that petitions w.p. (crl) 441/2015 page 14 of 95 filed under article 161 of the constitution are pending before the governor of jammu & kashmir for anything between five to eight years. a pernicious impression seems to be growing that whatever the courts may decide, one can always turn to the executive for defeating the verdict of the court by resorting to delaying tactics. undoubtedly, the executive has the power, in appropriate cases, to act under the aforesaid provisions but, if we may remind, all exercise of power is pre-conditioned by the duty to be fair and quick. delay defeats justice.” (emphasis supplied) 14. as a matter of academic interest, we may notice that the full bench had also held that the court may also look into the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question where the motivation and pattern of the crime are such as are likely to lead to its repetition. this has also been overruled in smt.triveniben (supra).15. the supreme court in the case of k.p. mohammed v. state of kerala, 1984 (supp) scc684 re-emphasized the importance of the self- imposed rule of discipline that mercy petitions should be disposed of within three months. while coming to the conclusion, the division bench took a queue from the law prevailing in cases of election petitions.16. in munawar harun shah v. state of maharashtra, (1983) 3 scc354 the supreme court reiterated the principles that lapse of time for which the convict himself was responsible cannot form the basis of commuting the sentence of death. in the case, the petitioners therein had contended that a period of five years had elapsed since the imposition of the death penalty for which their punishment should be w.p. (crl) 441/2015 page 15 of 95 commuted. finding that the delay was caused because of repetitive petitions being filed by the convicts themselves, the supreme court dismissed the petitions.17. however, in a subsequent judgment of a division bench of the supreme court in the case of javed ahmed abdul hamid pawala v. state of maharashtra, (1985) 1 scc275 the rule of thumb of two years was reiterated leaving a doubt as to whether t.v. vatheeswaran (supra), decided by a division bench of two judges, could have been overruled by a division bench of three judges in sher singh (supra) to this extent or not.18. this controversy was put to rest by a constitutional bench of the supreme court in the case of smt.triveniben (supra) wherein it was held that no fixed period of delay could make the sentence of death inexecutable and to such extent t.v. vatheeswaran (supra) did not lay down the correct position of law. the constitutional bench pronounced their reasoned judgment later which has been reported as (1989) 1 scc678 though the bench unanimously held that any rule of thumb of two years could not be laid down; however, were at odds as to whether the nature of the offence and the circumstances surrounding thereto could be taken into consideration. g.l. oza, j., giving the opinion for the majority, held as under: “16. even in this court although there does not appear to be a specific rule but normally these matters are given top priority. although it was contended that this reference before us — a bench of five judges, was listed for hearing after a long interval of time. we do not know why this reference could not be listed except what is generally well known the difficulty of providing a bench of five judges but ordinarily it is expected that even in this court the matters w.p. (crl) 441/2015 page 16 of 95 where the capital punishment is involved will be given top priority and shall be heard and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any court before final adjudication even the person who has been condemned or who has been sentenced to death has a ray of hope. it therefore could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the doomsday. the delay therefore which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the apex court is pronounced i.e. when the judicial process has come to an end.17. after the matter is finally decided judicially, it is open to the person to approach the president or the governor, as the case may be, with a mercy petition. sometimes person or at his instance or at the instance of some of his relatives, mercy petition and review petitions are filed repeatedly causing undue delay in execution of the sentence. it was therefore contended that when such delay is caused at the instance of the person himself he shall not be entitled to gain any benefit out of such delay. it is no doubt true that sometimes such petitions are filed but a legitimate remedy is available in law, a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that alone will be a matter attracting the jurisdiction of this court, to consider the question of the execution of the sentence. while considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself however shall not be considered. the only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the executive.18. so far as the scope of the authority of the president and the governor while exercising jurisdiction under article 72 and article 161 are concerned the question is not at all relevant so far as the case in hand is concerned. but it must be observed that when such petitions under article 72 or w.p. (crl) 441/2015 page 17 of 95 161 are received by the authorities concerned it is expected that these petitions shall be disposed of expeditiously. … 22. it was contended that the delay in execution of the sentence will entitle a prisoner to approach this court as his right under article 21 is being infringed. it is well settled now that a judgment of court can never be challenged under article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating article 14 or article 21 as has been laid down by this court in naresh shridhar mirajkar v. state of maharashtra [air1967sc1: (1966) 3 scr744 and also in a.r. antulay v. r.s. nayak [(1988) 2 scc602:1988. scc (cri) 372]. , 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 article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper..................” (emphasis supplied) 19. in his separate but concurring opinion, k. jagannatha shetty, j., observed as under: “72. if the delay in passing the sentence cannot render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional. much less any fixed period of delay could be held to make the sentence inexecutable. it would be arbitrary to fix any period of limitation for execution on the ground that it would be a w.p. (crl) 441/2015 page 18 of 95 denial of fairness in procedure under article 21. with respect, i am unable to agree with the view taken in vatheeswaran case [(1983) 2 scc68:1983. scc (cri) 3 (1983) 2 scr348 on this aspect. … 74. it is, however, necessary to point out that article 21 is relevant at all stages. this court has emphasised that ―the speedy trial in criminal cases though not a specific fundamental right, is implicit in the broad sweep and content of article 21‖ [ see hussainara khatoon v. state of bihar, (1980) 1 scc81:1980. scc (cri) (1979) 3 scr169 . speedy trial is a part of one's fundamental right to life and liberty [ see kadra pahadiya v. state of bihar, (1981) 3 scc671:1981. scc (cri) 791 and (1983) 2 scc104:1983. scc (cri) 361]. . this principle, in my opinion, is no less important for disposal of mercy petition. 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. he may be provided with amenities of ordinary inmates in the prison as stated in sunil batra v. delhi admn. [(1978) 4 scc494:1979. scc (cri) 1 (1979) 1 scr392 , but nobody could succeed in giving him peace of mind. chita chinta dwayoormadhya, chinta tatra gariyasi, chita dahati nirjivam, chinta dahati sajeevakam.75. as between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one. this mental torment may become acute when the judicial verdict is finally set against the accused. earlier to it, there is every reason for him to hope for acquittal. that hope is extinguished after the final verdict. if, therefore, there is inordinate delay in execution, the condemned prisoner is w.p. (crl) 441/2015 page 19 of 95 entitled to come to the court requesting to examine whether it is just and fair to allow the sentence of death to be executed.76. what should be done by the court is the next point for consideration. it is necessary to emphasise that the jurisdiction of the court at this stage is extremely limited. if the court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. 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 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 article 226 or under article 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 execution unconstitutional.…” into account cannot render itself the time utilised in the by the 20. the bench differed on the question as to whether the offence and the circumstances related thereto could be taken into consideration. the (emphasis supplied) relevant portions are under: majority view: “22. …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 w.p. (crl) 441/2015 page 20 of 95 considered for coming to the conclusion whether the sentence could be altered on that ground also.” minority view: “76. …nor it can be divorced from the dastardly and diabolical circumstances of the crime itself. …” 21. in madhu mehta v. union of india and others, (1989) 4 scc62 the supreme court after considering that a delay of more than 8 years in disposal of mercy petition under articles 161 and 72 had taken place commuted death penalty to one of life.22. by this time, it was well-settled that delay caused by the convict himself would not render the sentence of death inexecutable. [see jumman khan v. state of u.p. and another, (1991) 1 scc752(paragraphs 5 & 20)].23. one of the convicts who had previously been denied relief in smt.triveniben (supra) again approached the supreme court in daya singh v. union of india and others, (1991) 3 scc61contending that there had been delay in the execution of his sentence after the judgment in smt.triveniben (supra). the convict had preferred a second mercy petition, which was not processed for two years, as the governor had made a reference to the president of india raising certain queries. the reference remained under consideration and was answered only after considerable delay. the court found that there was no reasonable explanation to the delay and that the convict was in no way responsible for it. ultimately, the petition was allowed considering the cumulative effect of all the circumstances of the case. the relevant portion of the judgment reads as under:-"w.p. (crl) 441/2015 page 21 of 95 as was cautioned by “7. …the affidavit, however, does not furnish any fact or circumstance in justification of the delay. in absence of any reasonable explanation by the respondents we are of the view that if the concerned officers had bestowed the necessary attention to the matter and devoted the time its urgency needed, we have no doubt that the entire process of consideration of the questions referred would have been completed within a reasonable period without leaving any yawning gap rightly described by the learned additional solicitor general as ―embarrassing gap‖. there has, thus, been an avoidable delay, which is considerable in the totality of circumstances in the present case, for which the condemned prisoner is in no way responsible. in triveniben 8. this court case [(1989) 1 scc678:1989. scc (cri) 248]. we are not laying down any rule of general application that the delay of two years will entitle a convict, sentenced to death, to conversion of his sentence into one for life imprisonment, rather we have taken into account the cumulative effect of all the circumstances of the case for considering the prayer of the petitioner. although the fact that the petitioner has been continuously detained in prison since 1972 was taken into account while rejecting his earlier writ petition, the same is not rendered completely irrelevant for the purpose of the present case and we have taken it into consideration merely as a circumstance assuming significance as a result of the relevant circumstances arising subsequent to the judgment rendered in october 1988.‖ (emphasis supplied) 24. the law, at this stage, remained stagnant for and thus, we may fast forward ahead about 20 years. the convict in devender pal singh bhullar v. state (nct of delhi), (2013) 6 scc195 had been convicted under sections 419, 420, 468 and 471 of the indian penal code, section 12 of the passports act and sections 2, 3 & 4 of terrorist and disruptive activities (prevention) act. he had w.p. (crl) 441/2015 page 22 of 95 approached the supreme court seeking commutation of his penalty on the ground of inordinate delay. having regard to the gravity of the crime and relying upon the dissenting opinion (to its limited extent) of k. jagannatha shetty, j.in smt.triveniben (supra), the court held that delay cannot be a ground of commutation in cases where a person is convicted for offence under tada or similar statutes. relevant portion of the judgment reads as under:-":1983. scc “66. though the argument appears attractive, on a deeper consideration of all the facts, we are convinced that the present case is not a fit one for exercise of the power of judicial review for quashing the decision taken by the president not to commute the sentence of death imposed on the petitioner. time and again (machhi singh case[(1983) 3 scc470(cri) 681]., ediga anamma case [ediga anamma v.state of a.p., (1974) 4 scc443:1974. scc (cri) 479]. , sher singh case [(1983) 2 scc344:1983. scc (cri) 461]. and triveniben case [(1989) 1 scc678:1989. scc (cri) 248]. ), it has been held that while imposing punishment for murder and similar type of offences, the court is not only entitled, but is duty-bound to take into consideration the nature of the crime, the motive for commission of the crime, the magnitude of the crime and its impact on the society, the nature of weapon used for commission of the crime, etc. … all these factors have to be taken into consideration by the president or the governor, as the case may be, while deciding a petition filed under article 72 or 161 of the constitution and the exercise of power by the president or the governor, as the case may be, not to entertain the prayer for mercy in such cases cannot be characterised as arbitrary or unreasonable and the court cannot exercise power of judicial review only on the ground of undue delay.67. we are also of the view that the rule enunciated in sher singh case, triveniben case and some other judgments that long delay may be one of the grounds for w.p. (crl) 441/2015 page 23 of 95 commutation of the sentence of death into life imprisonment cannot be invoked in cases where a person is convicted for offence under tada or similar statutes. such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes. the seriousness of the crimes committed by the terrorists can be gauged from the fact that many hundred innocent civilians and men in uniform have lost their lives. at times, their objective is to annihilate their rivals including the political opponents. they use bullets, bombs and other weapons of mass killing for achieving their perverted political and other goals or wage war against the state. while doing so, they do not show any respect for human lives. before killing the victims, they do not think even for a second about the parents, wives, children and other near and dear ones of the victims. the families of those killed suffer the agony for their entire life, apart from financial and other losses. it is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of the petition filed under article 72 or 161 of the constitution as a ground for commutation of the sentence of death. many others join the bandwagon to espouse the cause of terrorists involved in gruesome killing and mass murder of innocent civilians and raise the bogey of human rights.” (emphasis supplied) 25. in a short span of time, the very same bench of the supreme court in mahendra nath das v. union of india and others, (2013) 6 scc253finding unexplained chunks of delay cumulating to 12 years between the making of the mercy petition under article 72 and rejection thereof and the fact that the note of the predecessor of the president was not put up by the ministry of home affairs, commuted the sentence of death into one of life. w.p. (crl) 441/2015 page 24 of 95 26. thereafter, a full bench of the apex court in shatrughan chauhan & another v. union of india and others, (2014) 3 scc1 has summarized the law in respect of mercy petitions under articles 72 and 161 of the constitution of india. in respect of delay in deciding petitions, p. sathasivam, c.j., giving the opinion for the bench, observed as under: “44. in view of the above, we hold that undue long delay in execution of sentence of death will entitle the condemned prisoner to approach this court under article 32. however, this court will only examine the circumstances surrounding the delay that has occurred and those that have ensued after the sentence was finally confirmed by the judicial process. this court cannot reopen the conclusion already reached but may consider the question of inordinate delay to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. … 47. it is clear that after the completion of the judicial process, if the convict files a mercy petition to the governor/president, it is incumbent on the authorities to dispose of the same expeditiously. though no time-limit can be fixed for the governor and the president, it is the duty of the executive to expedite the matter at every stage viz. calling for the records, orders and documents filed in the court, preparation of the note for approval of the minister concerned, and the ultimate decision of the constitutional authorities. this court, in triveniben, further held that in doing so, if it is established that there was prolonged delay in the execution of death sentence, it is an important and relevant consideration for determining whether the sentence should be allowed to be executed or not.48. accordingly, if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this court is well within its powers under article 32 w.p. (crl) 441/2015 page 25 of 95 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone however, only after satisfying that the delay was not caused at the instance of the accused himself. to this extent, the jurisprudence has developed in the light of the mandate given in our constitution as well as various universal declarations and directions issued by the united nations. … 64. from the analysis of the arguments of both the counsel, we are of the view that only delay which could not have been avoided even if the matter was proceeded with a sense of urgency or was caused in essential preparations for execution of sentence may be the relevant factors under such petitions in article 32. considerations such as the gravity of the crime, extraordinary cruelty involved therein or some horrible consequences for society caused by the offence are not relevant after the constitution bench ruled in bachan singh v. state of punjab [bachan singh v. state of punjab, (1980) 2 scc684:1980. scc (cri) 580]. that the sentence of death can only be imposed in the rarest of rare cases. meaning, of course, all death sentences imposed are impliedly the most heinous and barbaric and rarest of its kind. the legal effect of the extraordinary depravity of the offence exhausts itself when court sentences the person to death for that offence. law does not prescribe an additional period of imprisonment in addition to the sentence of death for any such exceptional depravity involved in the offence. … 70. the same view was once again reiterated by all the judges and the very same reasonings have been reiterated in para 23 of the order dated 7-2-1989. in such circumstances and also in view of the categorical opinion of oza, j.in para 22 of the judgment in triveniben that: ―22. … it will not be open to this court in exercise of jurisdiction under article 32 to go behind or to examine the final verdict …. the nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court….‖ w.p. (crl) 441/2015 page 26 of 95 (emphasis supplied) it cannot be held, as urged, on behalf of the union of india that the majority opinion in triveniben is to the effect that delay is only one of the circumstances that may be considered along with ―other circumstances of the case‖ to determine as to whether the death sentence should be commuted to one of life imprisonment. we are, therefore, of the view that the opinion rendered by shetty, j.as quoted in para 76 of the judgment in triveniben is a minority view and not a view consistent with what has been contended to be the majority opinion. we reiterate that as per the majority view, if there is undue long delay in execution of sentence of death, the condemned prisoner is entitled to approach this court under article 32 and the court is bound to examine the nature of delay caused and circumstances that ensued after the sentence was finally confirmed by the judicial process and to take a decision whether execution of sentence should be carried out or should be altered into imprisonment for life. it is, however, true that the majority of the judges have not approved the fixed period of two years enunciated that extent overruled the same. … 78. taking guidance from the above principles and in the light of the ratio enunciated in triveniben, we are of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases including the offences under tada. the only aspect the courts have to satisfy is that the delay must be unreasonable and unexplained or inordinate at the hands of the executive. the argument of mr luthra, learned asg that a distinction can be drawn between ipc and non-ipc offences since the nature of the offence is a relevant factor is liable to be rejected at the outset. in view of our conclusion, we are unable to share the views expressed in devender pal singh bhullar.” in vatheeswaran and only to (emphasis supplied) w.p. (crl) 441/2015 page 27 of 95 27. both the review petitions and the curative petitions filed by the government against the judgment have been dismissed. from the aforegoing, it is clear that the delay in execution of death penalty may render the sentence inexecutable only if the delay is: (i) (ii) unreasonable and unexplained, or inordinate on the part of the executive; and (iii) should not have been occasioned due to the convict himself.28. at the same time, the supreme court held that the judgment in devender pal singh bhullar (supra) is per incuriam inasmuch as the courts are not justified in looking into the gravity and the nature of the offence at this stage.29. soon thereafter, the true import of the judgment in shatrughan chauhan (supra) was questioned in v. sriharan alias murugan v. union of india and others, (2014) 4 scc242 where one of the contentions raised by the union was that the petitioners therein had failed to show any suffering or ill-effects from the delay in deciding the mercy petition and thus, were not entitled to any relief. the very same bench as in shatrughan chauhan (supra) rejected the argument as the same would be a misinterpretation of their previous judgment. relevant portion reads as under: “21. thus, the argument that the petitioners are under a legal obligation to produce evidence of their sufferings and harm caused to them on account of prolonged delay is unknown to law and will be misinterpretation of shatrughan chauhan. such a prerequisite would render the fundamental rights guaranteed under part iii of the constitution beyond the reach of death-row convicts and will make them nugatory and inaccessible for all intent and purposes. besides, there is no requirement in indian law as well as in w.p. (crl) 441/2015 page 28 of 95 international judgments for a death-row convict to prove actual harm occasioned by the delay. there is no obligation on the convict to demonstrate specific ill effects of suffering and agony on his mind and body as a prerequisite for commutation of sentence of death.” (emphasis supplied) 30. thus, the condemned prisoner need not show any scars for agitating the ground of delay as delay itself violates the procedural due process guaranteed under article 21.31. we may also note that the courts have generally not taken delay as a factor in isolation but considered the cumulative effect of the supervening circumstances. in navneet kaur v. state (nct of delhi) and another, (2014) 7 scc264 the wife of devender pal singh bhullar had once again approached the supreme court by filing a curative petition, inter alia, alleging that the previous judgment which had sealed the fate of her husband had been declared per incuriam. the apex court after taking into account the cumulative effect of the unexplained/inordinate delay of 8 years and the ground of insanity allowed the petition and commuted the sentence to one of life imprisonment.32. similarly, in ajay kumar pal v. union of india and another¸ (2015) 2 scc478 a full bench of the supreme court held that the cumulative effect (described as the „combined effect‟) of inordinate delay of a period of 3 years and 10 months coupled with the fact that the petitioner had been in solitary confinement since the day he was awarded death sentence, violated article 21 and thus, warranted a commutation of the sentence of the petitioner. w.p. (crl) 441/2015 page 29 of 95 33. during the course of the arguments, our attention was also diverted to a recent judgment of the allahabad high court in peoples’ union for democratic rights (pudr) v. union of india & ors., (2015) 5 all lj178:2015. cri lj4141 where it has been held as under: “12. …the test of delay in the execution of the sentence of death which has been evolved in india over the last three decades is an objective test. the test requires the court to determine whether a delay which has occurred in the execution of the death sentence after the judgment of conviction had attained finality had been avoidable or unnecessary. requiring the court to scrutinize the reasons for the delay imparts a measure of objectivity to the process since there can be no greater anathema to the law than a subjective application of norms and standards in the execution of the death penalty. as an intrinsic part of this doctrine, which is a now settled part of our law, the true test is not whether the delay has crossed a particular threshold of time. the quantum test is not accepted as a part of constitutional doctrine in india. hence, the execution of the sentence of death cannot be regarded as being unconstitutional because the passage of a particular period of time is regarded improper. the true test or enquiry is not about a particular quantum of time but whether the delay is such as should be regarded as being avoidable, unnecessary and, therefore, prolonged. as an integral part of this doctrine, the court which is exercising its power of judicial review has to consider whether the convict is responsible for the delay which has taken place. a convict may adopt, as experience shows, strategies to delay the execution of the death sentence including the filing of successive review petitions. as a principle of law, a convict is not entitled to the benefit of a delay which has been caused by their own conduct. hence, when the execution of the sentence of death has been stayed during the course of proceedings for review, after the court of competent jurisdiction, the period of stay that has elapsed in the disposal of the review petition would not enure to the benefit judgment of the final w.p. (crl) 441/2015 page 30 of 95 of the convict. the significant point to note is that there is no thumb rule of a particular quantum of delay or a particular period being regarded as a justification for granting mercy. it is not the quantum of delay but the reason for delay which assumes significance.” (emphasis supplied) 34. it may be noted that the ministry of home affairs, government of india has issued instructions to emphasize the need of expediting of the process. the ministry of home affairs has released „instructions regarding procedure to be observed by the states for dealing with petitions for mercy from or on behalf of convicts under sentence of death and with appeals to the supreme court and applications for special leave to appeal to that court by such convicts‟. as per the rules, the requirement of alarcity is at every stage of the process. the convict is allowed only 7 days to make a mercy petition and the same would also make it incumbent upon the government to show the same urgency. we deem it appropriate to reproduce relevant rules: “v. in all cases in which a petition for mercy from a convict under sentence of death is to be forwarded to the secretary to the government of india, ministry of home affairs, the lieut. governor/ chief commissioner/ administrator or the government of the state concerned, as the case may be, shall forward such petition as expeditiously as possible along with the records of the case and his or its observations in respect of any of the grounds urged in the petition. in the case of states, the government of the state concerned shall, if it had previously rejected any petition addressed to itself or the governor/sadar-i-riyasat, also forward a brief statement of the reasons for the rejection of the previous petition or petitions. vi. upon the receipt of the orders of the president, an acknowledgement shall be sent to the secretary to the government of india, ministry of home affairs, immediately w.p. (crl) 441/2015 page 31 of 95 in the manner hereinafter provided. in the case of assam and the andaman and nicobar islands, all orders will be communicated by telegram and the receipt thereof shall be acknowledged by telegram. in the case of other states and union territories, if the petition is rejected, the orders will be communicated by express letter and receipt thereof shall be acknowledged by express letter. orders commuting the death sentence will be communicated by express letter in the case of delhi and by telegram in all other cases and receipt thereof, shall be acknowledged by express letter or telegram, as the case may be.” (emphasis supplied) 35. from the rules, it is clear that the executive is to show urgency at all stages of processing a mercy petition. as per rule v, the lieutenant governor/chief commissioner/administrator or the government of the state concerned is to forward such petition „as expeditiously as possible‟. all communications are also to be made by telegram or by an express letter in order to minimize the time taken. this aspect was also considered by the full bench of the supreme court in shatrughan chauhan (supra) as under: “100. the above rules make it clear that at every stage the matter has to be expedited and there cannot be any delay at the instance of the officers, particularly, the superintendent of jail, in view of the language used therein as ―at once‖.101. apart from the above rules regarding presentation of mercy petitions and disposal thereof, necessary instructions have been issued for preparation of note to be approved by the home minister and for passing appropriate orders by the president of india.102. the extracts from the prison manuals of various states applicable for the disposal of mercy petitions have been placed before us. every state has a separate prison manual which speaks about detailed procedure, receipt placing required materials for approval of the home minister and w.p. (crl) 441/2015 page 32 of 95 the president for taking decision expeditiously. the rules also provide steps to be taken by the superintendent of jail after the receipt of mercy petition and subsequent action after disposal of the same by the president of india. almost all the rules prescribe how the death convicts are to be treated till final decision is taken by the president of india.103. the elaborate procedure clearly shows that even death convicts have to be treated fairly in the light of article 21 of the constitution of india. nevertheless, it is the claim of all the petitioners herein that all these rules were not adhered to strictly and that is the primary reason for the inordinate delay in disposal of mercy petitions. for illustration, on receipt of mercy petition, the department concerned has to call for all the records/materials connected with the conviction. calling for piecemeal records instead of all the materials connected with the conviction should be deprecated. when the matter is placed before the president, it is incumbent on the part of the home ministry to place all the materials such as judgment of the trial court, high court and the final court viz. supreme court as well as any other relevant material connected with the conviction at once and not call for the documents in piecemeal.” (emphasis supplied) 36. thus, there can be no doubt that it is incumbent upon the execut ive to expedite the process at every stage.37. during the course of arguments, dr.chaudhary had tried to impress upon this bench that the self-imposed rule of three months as propounded in sher singh (supra) and k.p. mohammed (supra) is very much alive and once the delay crosses the threshold, the onus shifts upon the executive to explain the delay. we are unable to accept the same as it would once again amount to fixing a thumb rule as to what is the reasonable time in which the mercy petition should be decided. according to us, it would remain incumbent upon the w.p. (crl) 441/2015 page 33 of 95 petitioner to show that there was a delay and that the same was avoidable or inordinate.38. as put so eloquently by k. jagannatha shetty, j.: “as between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one.” once the sentence of death has been confirmed the final judicial forum, any hope of acquittal which might be lingering on in the mind of the condemned prisoner is foreclosed and the spectre of death starts looming upon him. one never knows when he might be called upon to answer the call of the hangman. this uncertainty, i.e. the doubt of a tomorrow, is what burns the living body. it is a form of additional torment not mandated by law, i.e. not part of the sentence awarded to the convict and hence, it violates the constitutional protections. this delay inserts a dehumanising factor in the execution of the sentence of death inasmuch it deprives one of his life in an unjust, unfair and unreasonable way running awry of the due process of law enshrined in article 21 of the constitution.39. by now the law is well-settled that delay ipso facto will not render the sentence of death inexecutable warranting commutation of the penalty of the convict to one of life imprisonment. the principles to be adhered to by the courts can be summarized as under: (i) the delay must be unreasonable and unexplained or must be inordinate; (ii) the delay attributable to the convict himself should be factored out as then any suffering was called upon by the convict himself; w.p. (crl) 441/2015 page 34 of 95 (iii) the clock starts ticking from the confirmation of the death penalty by the supreme court and stops at the „nay‟ of the president; (iv) there cannot be any rule of thumb as to what amounts to inordinate delay in deciding the mercy petition and the same shall depend upon the facts of each case; (v) it is not incumbent upon the convict to show scars, i.e. the suffering in such delay is inherent and the condemned need not show any actual torment or misery; (vi) the nature of the offence, gravity of the crime and circumstances attendant thereto are irrelevant as all the cases have already been found and confirmed to be „rarest of rare‟ by numerous judicial forums and consequently, are bound to prick the judicial mind; but the insertion of any new category, the „rarest of the rarest of rare‟ if it may, is neither allowed by the english language nor law; and (vii) the courts have frequently refused to judge delay in isolation, but with other supervening circumstances, looking into the „cumulative‟ or „combined‟ effect.40. we proceed to analyse the case of the petitioner on the touchstone of the aforegoing principles.41. both the union of india/respondent no.1 and the state of chhattisgarh have filed detailed replies and have also handed over the original record in court. upon an analysis of the same, the following timeline would emerge: date particulars w.p. (crl) 441/2015 page 35 of 95 date 23.02.2012 20.03.2012 22.03.2012 09.04.2012 16.04.2012 particulars the supreme court upholds the death sentence of the petitioner. the petitioner submits his mercy petition to the jail superintendent, central jail, raipur. the jail superintendent seeks inputs from various state functionaries :  district magistrate, shahdol, madhya pradesh (address given by the petitioner in the mercy petition);  private secretary to the president of india;  principal secretary – home(jail), mantralaya, raipur;  adg – jail, raipur;  district magistrate, koriya, baikunthpur; and  district magistrate, raipur in the request to is received the president‟s mercy petition secretariat. the ministry of home affairs, government of india forwarded the government of chhattisgarh for placing it before the governor for his consideration under article 161 of the constitution and in the event of rejection by the governor, place the matter before the president with the requisite documents and other details. 20.04.2012 26.04.2012 30.04.2012 superintendent of police, shahdol, m.p. sends his inputs to the collector, shahdol. the jail district magistrate, shahdol superintendent, raipur that the petitioner is a resident of district anuppur and therefore, inputs should be sought from district magistrate, anuppur. the letter dated 26.04.2012 is received in the office of jail superintendent, raipur. informs w.p. (crl) 441/2015 page 36 of 95 date particulars 31.05.2012 02.06.2012 04.06.2012 05.06.2012 27.07.2012 30.07.2012 22.08.2012 27.08.2012 31.08.2012 23.11.2012 04.12.2012 the jail superintendent seeks inputs from district magistrate, anuppur. the sdm, district anuppur seeks inputs from the superintendent of police, anuppur. the sho, p.s. baikunthpur send his inputs in the negative to the superintendent of police, koriya. superintendent of police, anuppur seeks inputs from sho, p.s. chachai, district anuppur. the superintendent of police, koriya sends his inputs for rejection of mercy petition to the additional collector, koriya, baikunthpur. the sho, p.s. chachai, anuppur sends his inputs to the district magistrate, anuppur. the superintendent of police, anuppur sends his inputs to the district magistrate, anuppur. the jail district magistrate anuppur informs superintendent, central jail, raipur that the family of the petitioner has shifted from anuppur to chirimiri, district koriya and therefore, is unable to give any input. the letter dated 22.08.2012 is received in the office of the jail superintendent, raipur. the office of jail superintendent seeks inputs from district magistrate, koriya, baikunthpur. the district magistrate, koriya, baikunthpur sends his inputs for rejection of mercy petition which is received in the office of jail superintendent on 01.12.2012. the superintendent, central jail, raipur sends the inputs received from district magistrate koriya to the jail and reformative services, headquarters, raipur, chhattisgarh; president of india‟ principal secretary – home (jail), mantralaya, raipur; adg – w.p. (crl) 441/2015 page 37 of 95 date particulars jail, raipur, district magistrate – koriya, baikunthpur; and district magistrate, raipur. the letter recommends the pre-mature release of the petitioner. the office of jail and reformative services headquarters, raipur forwards the copy of mercy petition along with other documents to the principal secretary – home(jail) for further proceedings. noting that all the inputs have been received and that both the superintendent of police and the district magistrate have advised against the mercy petition. note is prepared recommending that the petition should be rejected. the ministry of home affairs, government of india sends a reminder to the state of chhattisgarh. note is placed for presenting to the governor the note is approved by the chief minister of chhattisgarh as per the affidavit of the respondent no.1/union of india: the governor rejected the mercy petition. the governor rejects the plea of the petitioner, holding that he is not entitled to pre-mature release. the under secretary – home (jail), government of chhattisgarh seeks the required information as demanded by the ministry of home affairs from the office of jail & reformative services, raipur the principal secretary – home the jail & reformative services sends its response to (jail), government of chhattisgarh as per the affidavit of the respondent no.2/state of chhattisgarh: the governor rejects the mercy 13.12.2012 19.12.2012 20.02.2013 20.03.2013 01.04.2013 02.04.2013 08.04.2013 08.04.2013 17.04.2013 26.04.2013 10.05.2013 w.p. (crl) 441/2015 page 38 of 95 date 10.05.2013 27.05.2013 31.07.2013 30.08.2013 04.09.2013 05.09.2013 particulars petition in exercise of the powers under article 161 of the constitution. the under secretary – home (jail), government of chhattisgarh the office of jail & reformative services, raipur that the mercy petition has been rejected by the governor informs union of india letter sent by the state of chhattisgarh to the ministry of home affairs, government of india intimating that the mercy petition has been rejected by the governor noting made in file for expediting proceedings. a brief was prepared and the file was submitted and certain queries were raised the queries are answered it was noted that 3 other accused were still absconding and accordingly, it was decided to call for the present status of theses absconding accused from the state government along with copies of the trial court records („tcr‟) and the police diary. 10.09.2013 (date of issuance: status of absconding records and police diary were called for. individuals, trial court 11.09.2013) 22.10.2013 (date of issuance) january, 2014 04.02.2014 reminder sent to the state government the state of chhattisgarh provided the information pertaining to the absconding accused, but failed to furnish the trial court proceedings and the police diary. file was put up for directions as to whether the file w.p. (crl) 441/2015 page 39 of 95 date particulars 05.02.2014 06.02.2014 07.02.2014 (date of issuance) 12.02.2014 19.02.2014 19.02.2014 20.02.2014 24.02.2014 25.02.2014 04.03.2014 may be processed without further waiting for the tcr and police diary suggestion made that a reminder may be issued to the state of chhattisgarh to supply the tcr and the police diary within 14 days and if no information is received within a month, the ministry would process the case. draft letter was placed for consideration the reminder was sent by the ministry of home affairs the reminder is received by the government of chhattisgarh along with the noting that the that a reminder has been sent to the state government, the file was put up for further directions by the ministry of home affairs, government of india the under secretary – home (jail), govt. of chhattisgarh issues a letter to the superintendent of police, koriya to provide the necessary documents as detailed in letter dated 10.09.2013 decision is taken that the mercy petition may be finally processed for submission to the president for consideration note was finalized and put up recommendation for rejection of mercy petition by the joint secretary, ministry of home affairs the under secretary – home (jail), govt. of chhattisgarh sends a reminder to the superintendent of police, koriya directing that the documents necessarily be sent within 3 days. 10.03.2014 18.03.2014 and summary placed in file for consideration fair copy of the summary finalized and submitted w.p. (crl) 441/2015 page 40 of 95 date 24.03.2014 19.03.2014 26.03.2014 02.04.2014 22.04.2014 05.05.2014 07.05.2014 08.05.2014 13.05.2014 20.05.2014 22.05.2014 particulars for approval to the home minister another reminder issued by the under secretary – home (jail), govt. of chhattisgarh sends another reminder to the superintendent of police, koriya to send the documents immediately. home minister approved recommended the rejection of the petition the summary and the under secretary – home (jail), govt. of chhattisgarh again directs the necessary documents be sent within 3 days. that (jail) department, government another reminder issued by the osd/secretary, home of chhattisgarh mercy petition is rejected by the president of india the superintendent of police, koriya sends the documents to the osd/secretary, home (jail) department, state of chhattisgarh letter is issued to the secretary – home, jail department, government of chhattisgarh that the mercy petition has been rejected. the letter of rejection sent by the union government is received by the government of chhattisgarh letter issued by the under secretary – home, jail department, government of chhattisgarh to the jail and reformative services directing that the rejection of the mercy petition may be intimated. the petitioner is informed of the rejection of his mercy petition. facts in italics have been extracted from the official records handed over in court on 09.03.2017. submissions in respect of delay w.p. (crl) 441/2015 page 41 of 95 42. dr.chaudhary has submitted that the whole process has taken 792 days and all the while, the spectre of death was looming on the head of the petitioner. learned counsel has sought to identify major chunks of unexplained delay in deciding the mercy petition of the petitioner.43. we may note at this juncture that dr.chaudhary has contended that the whole process of collecting inputs from various state authorities was futile as the same were processed under the wrong rule, which did not apply to prisoners on death-row. thus, the entire time taken to seek inputs should be counted towards the delay in deciding the mercy petition. whether the rule which was applied was correct or not has been dealt with at a later stage.44. learned counsel for the petitioner has alleged that the first chunk of unexplained delay is of 8 months between 22.03.2013 when the jail superintendent had sought inputs from various state functionaries and 23.11.2012, i.e. when the district magistrate, koriya had sent his input for denying the release of the petitioner. it is submitted that the though the report of the sho, p.s. baikunthpur is dated 02.06.2012, it took the district magistrate more than five and a half months in acting upon the report. it is submitted by learned counsel that this delay was avoidable.45. the next period of unexplained delay is between 13.12.2012 and 08.04.2012 between the forwarding of the mercy petition along with all the inputs and the ultimate rejection of the petition by the governor. we need not divulge in this period in detail as after examining the original records, it is clear that the petition was being processed during this period. w.p. (crl) 441/2015 page 42 of 95 46. dr.chaudhary has contended that the state government failed to communicate the rejection of the mercy petition to the respondent no.1 for more than 1 month. he submits that while the mercy petition was rejected on 08.04.2013, it was intimated to the government of india on 27.05.2013, thereby causing a delay of about 1 and a half month.47. the next period of delay is between 27.05.2013 and 31.07.2013, when the file was lying in cold storage with the government of india.48. it is contended that the final period of delay for which there is no explanation is the period between 10.09.2013 and 20.02.2014, which was wasted in seeking the documents from the state government despite four reminders of the government of india.49. mr.chawla, counsel for the respondent no.1/union of india, submits that most of the alleged delay is attributable to the respondent no.2 and not the union of india. he submits that, as per the rules, the mercy petition is to be sent to the state government in the first instance for placing it before the governor under article 161 of the constitution. it is only upon its rejection by the governor that the matter is to be processed for consideration of the president.50. learned counsel for the union of india submits that the only delay attributable to the respondent no.1 is between 27.05.2013 and 31.07.2013 wherein the file was not being processed. he submits that though the letter of the state government was dispatched on 27.05.2013, it was actually received by the respondent no.1 on 06.06.2013. this fact has been omitted in the affidavit on behalf of the union of india though borne out from the record. thus, the only delay attributable to the respondent no.1 is of 1 month 20 days; w.p. (crl) 441/2015 page 43 of 95 otherwise the file has been processed expediently and the total time taken was in 11 months.51. it is next contended by the learned counsel for the respondent no.1 that it is not delay per se which renders the death sentence inexecutable, but inordinate, undue and unreasonable delay which may entitle a convict on death row to commutation. therefore, time of 11 months taken by the union of india cannot be said to be either inordinate or undue.52. during the course of arguments, it was also contended that the gravity of the offence must be considered as well as the convict must show that the delay occasioned suffering. both these arguments have been rejected by the supreme court and also dealt by us in the aforegoing paragraphs and thus, are rejected at the threshold. neither the gravity of the offence can be looked into nor is it incumbent upon the convict to show suffering.53. learned counsel for the respondent no.2 has also argued on similar lines. he contends that the law is well settled; there cannot be any hard and fast rule as to the time period in which the mercy petition is to be decided. he submits that the petitioner has failed to show any prejudice owing to the delay.54. in respect of inputs being futile, mr.jha submits that all the inputs were necessary to ensure that the right person was being sent to the gallows. the authorities were merely following the procedure while seeking information. he submits that inputs were sought from the district magistrate, shahdole as the petitioner was a resident of w.p. (crl) 441/2015 page 44 of 95 shahdole and it was only later learnt that the convict was a resident of anuppur.55. mr.jha concludes that the file of the petitioner was all along being processed and there cannot be said to be any period of unexplained delay. as an alternative argument, it is submitted that the total time taken by the respondent no.2 in deciding the mercy petition was 1 year 2 months, which cannot be said to be inordinate or undue. findings of the court on delay:56. the submission of dr.chaudhary is that there are specific periods of unexplained delay which would render the sentence of death inexecutable. the periods of delay are highlighted are as under: starting date 22.3.2012 end date 23.11.2012 time period 8 months jail superintendent, raipur seeks inputs on the mercy petition from the district magistrate, koriya district magistrate, koriya sends his input in the negative. 08.04.2013 27.05.2013 1 month 20 days mercy petition rejected by the governor govt. of chhattisgarh forwards mercy petition to govt. of india 31.07.2013 1 month 24 days nothing made in file for expediting proceedings. 06.06.2013 ministry of home affairs was intimated about the rejection by governor and was forwarded the mercy petition w.p. (crl) 441/2015 page 45 of 95 starting date 10.09.2013 end date 20.02.2014 time period 5 months 9 days status of absconding individuals, trial court records and police diary sought for from the state of chhattisgarh decision taken that the mercy petition may be finally processed for submission to the president for consideration thereof. total time period:1. year 4 months and 13 days 57. from the aforegoing, it is clear that there are some specify period of delay wherein the respondents have failed to reasonably explain the delay. at the same time, we may note that it is not unexplained delay ipso facto, which entitles the convict to seek commutation of his sentence. it should also be unreasonable for it to vitiate the decision. that is not so in the present case. further, the total time taken in deciding the mercy petition was 2 years 2 months; this period by no means can be said to be inordinate. consequently, this ground urged by the learned counsel for the petitioner is rejected. solitary confinement58 the next contention of the learned counsel for the petitioner is that the petitioner has been kept in illegal solitary confinement for over five years in a small cell with walls on all sides and iron bars in the front. it has been contended that the petitioner was kept in solitary confinement for 2 and a half years in ambikapur jail and subsequently, he was moved to raipur central prison where also he was kept under solitary confinement for 3 years. in total, the w.p. (crl) 441/2015 page 46 of 95 petitioner has been under illegal custody for 5 and a half years entitling him to commutation of sentence.59. dr.chaudhary has drawn the attention of this court to a sworn affidavit of the petitioner herein stating that he was in solitary confinement for 5 and a half years. it has also been submitted that when an advocate on behalf of the petitioner went to inspect the cell in which the petitioner was confined from 01.01.2011 to 01.01.2015, the request was rejected by the jail superintendent, central jail, raipur. an affidavit of the advocate is placed on record specifically averring that the jail superintendent had refused to acknowledge its receipt.60. the stand of the union of india/respondent no.1 is that the ground of solitary confinement had never been raised by the petitioner in his mercy petition and that the averment is contradictory to paragraph 29 of the writ petition. the respondent no.2 has contended that the averments of the petitioner are false as the convict was never kept in solitary confinement or fansi yard. mr.jha has also highlighted the contradiction in paragraph 29 of the writ petition.61. prior to venturing into the factual aspect, we deem it appropriate to deal with the submission of the learned counsel for the respondents in respect of paragraph 29 of the petition. paragraph 29 of the writ petition reads as under: “29. the... petitioner says that he has been leading a very disciplined and orderly life in prison assisting fellow prisoners and officials alike. through his conduct, he has exhibited concern for the welfare of others and tended to their social, emotional and spiritual needs. the jail authorities have testified to the good conduct of the... petitioner.” (emphasis supplied) w.p. (crl) 441/2015 page 47 of 95 62. the respondents have argued that paragraph 29 is repugnant to the submissions on solitary confinement and thus, the petitioner has contradicted himself. we do not agree with this submission as the paragraph does not expressly or by implication exclude the possibility of solitary confinement of the petitioner; even otherwise, when the petition is read as a whole, it is patent that the petitioner has averred in unequivocal terms that he was in solitary for two specific periods.63. we now proceed to analyse whether the petitioner was, infact, in solitary confinement as defined in sunil batra v. delhi administration & ors., (1978) 4 scc494 1978 cr.l.j.1741 (sc).64. the petitioner has alleged that he was kept in solitary confinement for two periods: (i) (ii) between 27.02.2008 to june, 2010 at ambikapur jail; and between 2011 to 2014 at the central jail, raipur.65. in the counter affidavit filed on behalf of the respondent no.2, a detailed chart has been given as to the details where the petitioner was kept. we deem it appropriate to extract the corresponding periods of the chart as under:07. 04.2009 to 20.06.2010 14.09.2011 the petitioner was kept in a separate barrack along with 2 other prisoners. alongside petitioners barrack there were 3 other barracks in which 200 prisoners were living. the prisoners used to use common toilet and bathing facilities. all prisoners were allowed to roam around and talk to each other freely. the petitioner was shifted to another sector of the jail premises [raipur central jail]. which has 24 rooms with attached toilets. these 24 rooms have veranda in front. many prisoners stay in these 24 rooms. all w.p. (crl) 441/2015 page 48 of 95 prisoners of these 24 rooms live together, they eat together and do gardening in the front lawns. they have a facility of tv, newspaper etc. the petitioner is currently living with 30 other prisoners in barrack no.1,central jail, raipur. 20.10.2014 66. noting the anomaly in the submission for the period between 07.04.2009 to 20.06.2010 that the term „a separate barrack‟ would indicate a number of rooms and not one room, the respondent no.2 was directed to clarify the position by an additional affidavit by an order of this court dated 21.05.2015. accordingly, an additional affidavit has been filed wherein it has been clearly stated “ that the barrack is one single room and not number of rooms.” thus, in view of the affidavit that the barrack was shared by 2 other prisoners, for this period atleast, the petitioner cannot be said to be in solitary confinement.67. in respect of the second period between 14.09.2011 and 20.10.2014, again the affidavit of the state of chhattisgarh failed to throw light upon the actual factual scenario. it is simple logic that a human being does not live in the company of dormitories or rooms. human being is a social animal, inasmuch as it lives in the company and comfort of other humans and not rooms or compartments. thus, affidavit clearly omitted to mention the vital aspect as to number of occupants of the rooms, the number of convicts housed in one room, etc. during the course of arguments, we had specifically put to the counsel for the respondent no.2 that the detainees of the rooms lived in one room each or together: to which the answer was that they live in one room each. upon enquiring as to what was the difference between this section and others, learned counsel was unable satisfactorily answer. the w.p. (crl) 441/2015 page 49 of 95 incarceration of the petitioner during this period can be gauged by our questions posed to the learned counsel for the respondent no.2 on 06.03.2017: q: are the verandahs common?. a: no.q: the rooms are not common?. a: yes. q: to conclude: there are separate rooms, separate verandahs and separate toilets?. a: yes.68. at which point, mr.jha contended that the detainees were eating food together and thus, the same would not constitute solitary confinement. he has relied upon paragraph 92 of sunil batra (supra) to substantiate his contention that the petitioner was not in solitary confinement as “[s].egregation of one person all alone in a single cell is solitary confinement”; which is not the case in the present proceedings.69. in his rejoinder, dr.chaudhary has submitted that the petitioner has done whatever was possible and within his means to show that he was in solitary confinement; on the contrary, the documents pertaining to the incarceration of the petitioner are within the exclusive domain of the respondents herein and it was incumbent upon them to produce the same. failing to do so, the court may draw a negative inference against the respondents. learned counsel had fortified his submission by relying upon the rule of best evidence and illustration (g) to section 114 of the indian evidence act, 1872. w.p. (crl) 441/2015 page 50 of 95 70. in this backdrop, we proceed to analyse the contentions of the parties.71. solitary confinement is a separate and independent punishment prescribed by the indian penal code, 1860 in sections 73, subject to limitations contained in section 74 and it can be imposed only by a judicial order and not otherwise.72. since section 30(2) of the prisons act, 1894 provided for what seemed to be a parallel punishment at the hands of the executive, mr.sunil batra approached the apex court under article 32 in sunil batra (supra) of the constitution alleging de facto solitary confinement without de jure sanction. the matter was heard by a constitutional bench of the apex court. the grievance of the petitioner therein was that he had been locked up in a “single cell with a small, walled yard attached, beyond the view and voice of others save the jail guards and formal visitors in discharge of their official chores and few callers once in a blue moon.” (paragraph44) the cell in which batra had been confined was inspected by the judges of the supreme court, whose inspection notes are quoted in the opinion of v.r. krishna iyer, j.as under: “we inspected the cell in which the prisoner was confined. we were relieved to find that conditions there did not correspond to the picture which eloquent arguments of his counsel before us conjured up in our minds. we had been led to believe that the prisoner was kept in some kind of a dungeon with only a small hole through which light could penetrate only when there was enough sunshine. it was true that the prisoner was living in a room with a cemented floor and with no bed, furniture, or windows in it. the light came from a ventilator with iron bars on the wall at the back of the room and the wide gate of iron bars in front. the light was, however, enough. it is also true that w.p. (crl) 441/2015 page 51 of 95 there was no separate room for the petitioner to take a bath in or to answer calls of nature. but, in this very room, the site of which given on a diagram furnished by the jail authorities, water and sanitary fittings were installed in one corner of the room. in front of the room there was a small verandah with pakka walls and iron gates separating each side of it from a similar verandah in front of an adjoining cell. the entrance into this verandah was also through a similar iron gate. the inner room in which the prisoner was confined had also a gate of iron bars. all gates were with iron bars on frames so that one could see across them through the spaces between the bars. all these gates were locked. we learnt that the petitioner was able to come into the verandah at certain times of the day. at that time only he could communicate with other similarly kept prisoners whom he could see and talk to through the iron bars. in other words, for all practical purposes, it was a kind of solitary confinement. we did not see a separate guard for each prisoner in the row of cells for prisoners sentenced to death. all these prisoners were certainly segregated and kept apart. but it is difficult to determine, without going into the meaning of ‗solitary confinement‘, as a term of law whether the conditions in which the petitioner was kept amounted to ‗solitary confinement‘. probably, if small windows with iron bars were provided between one cell and another, the prisoners could talk to each other also so that the confinement would no longer be solitary despite the fact that they are kept in separate adjoining cells. the petitioner did not complain of any discomfort other than being kept in ‗solitary confinement‘ and being made to sleep on the floor. he asked us to see another part of the prison where undertrials were kept. when we visited that part, we found dormitories provided there for undertrial prisoners who had beds there and their own bedding and clothing. they also had, in that part of the prison, radio sets, some of which belonged to the prisoners and others to the jail. the undertrials were allowed to mix with each other, play games, or do what they wanted within a compound.” w.p. (crl) 441/2015 page 52 of 95 (emphasis supplied) 73. the treatment of batra was found to be “little short of solitary confinement” and it was directed that the prisoner shall not be kept in confinement.74. the bench went on to hold that section 30 (2) of the prisons act merely enabled the authorities to separate or segregate the prisoner on death row from other prisoner; it did not allow segregation into an isolated cell, but only that “in a cell where there are a plurality of inmates the death sentence will have to be kept separated from the rest in the same cell but not too close to the others.” this separation was to be achived by placing a guard between the condemned prisoner and the other convicts and at the same time, such facility was not mandatory, i.e. to be imposed only if discipline warranted it. another aspect noted was that the treatment could only be given to a prisoner „under sentence of death‟. the phrase was read by the apex court to mean that s.30 (2) would only be applicable once the final „nay‟ had been received and nothing remained but the hangman‟s lethal move. it was to be meted out only after the rejection of the mercy petition by the president and not before.75. since the counsel for the respondents have contended that the petitioner was not in solitary confinement as all the prisoners in the separate sector of the raipur central jail used to eat together, we may discern the meaning of „solitary confinement‟ as given in sunil batra (supra). we may note the following paragraphs from the erudite opinion of v.r. krishna iyer, j.: w.p. (crl) 441/2015 page 53 of 95 by insulation then exists inflicted the petitioner “89. ... his contention is that solitary confinement is a separate substantive punishment of maddening severity prescribed by section 73 of the indian penal code which can be imposed only by the court; and so tormenting is this sentence that even the socially less sensitive penal code of 1860 has interposed, in its cruel tenderness, intervals, maxima and like softening features in both sections 73 and 74. such being the penal situation, it is argued that the incarceratory the prison superintendent on is virtual solitary confinement unauthorised by the penal code and, therefore, illegal. admittedly, no solitary confinement has been awarded to batra. so, if he is de facto so confined it is illegal. nor does a sentence of death under section 53 ipc carry with it a supplementary secret clause of solitary confinement. what warrant for solitary confinement on batra?. none. the answer offered is that he is not under solitary confinement. he is under ‗statutory confinement‘ under the authority of section 30(2) of the prisons act read with section 366 (2) crpc, 1973. it will be a stultification of judicial power if, under guise of using section 30(2) of the prisons act, the superintendent inflicts what is substantially solitary confinement which is a species of punishment exclusively within the jurisdiction of the criminal court. we hold, without hesitation, that sunil batra shall not be solitarily confined. can he be segregated from view and voice and visits and commingling, by resort to section 30(2) of the prisons act and reach the same result?. to give the answer we must examine the essentials of solitary confinement to distinguish it from being ‗confined in a cell apart from all other prisoners‘. 89-a. if solitary confinement is a revolt against society's humane essence, there is no reason to permit the same punishment to be smuggled into the prison system by naming it differently. law is not a formal label, nor logomachy but a working technique of justice. the penal code and the criminal procedure code regard punitive solitude too harsh and to permit preventive solitary confinement, released even from intended the legislature cannot be w.p. (crl) 441/2015 page 54 of 95 is solitary cell confinement. that the restrictions of sections 73 and 74 ipc, section 29 of the prisons act and the restrictive prison rules. it would be extraordinary that a far worse solitary confinement, masked as safe custody, sans maximum, sans intermission, sans judicial oversight or natural justice, would be sanctioned. commonsense quarrels with such nonsense. … 92. confinement inside a prison does not necessarily import cellular isolation. segregation of one person all alone in a single is a separate punishment which the court alone can impose. it would be a subversion of this statutory provision (sections 73 and 74 ipc) to impart a meaning to section 30(2) of the prisons act whereby a disciplinary variant of solitary confinement can be clamped down on a prisoner, although no court has awarded such a punishment, by a mere construction, which clothes an executive officer, who happens to be the governor of the jail, with harsh judicial powers to be exercised by punitive restrictions and unaccountable to anyone, the power being discretionary and disciplinary.93. indeed, in a jail, cells are ordinarily occupied by more than one inmate and community life inside dormitories and cells is common. therefore, ―to be confined in a cell‖ does not compel us to the conclusion that the confinement should be in a solitary cell. … 96. sub-section (6) and (7) relate to ―irons‖ and have relevance to the sobraj case which we will presently deal with. sub-section (8) speaks of ―separate confinement‖ for any period not exceeding three months. there is a further explanation which to some extent softens the seclusion. it obligates the authority not to keep the prisoner ―from sight of other prisoners‖ and allows him not less than one hour's exercise per diem and to have his meals in association with other prisoners. thus it is clear that even if a grave prison offence has been committed, the punishment does not carry segregated cellular existence and permits life in association in mess and exercise, in view and voice but not in w.p. (crl) 441/2015 page 55 of 95 interdicts its rigour. it entirely excludes a prisoner communication with other prisoners. moreover, punitive separate confinement shall not exceed three months and section 47 the combination of cellular confinement and ―separate confinement‖ so as not to exceed together the periods specified there. it is useful to mention that ―cellular confinement‖ is a stricter punishment than separate confinement and it cannot exceed 14 days because of from communication with other prisoners but it shall not exclude a prisoner from sight of other prisoners. … 99. an analysis of the provisions of the penal code and of the prisons act yields the clear inference that section 30(2) relates to separation without isolation, keeping apart without close confinement. whatever the consequence of the ‗solitary‘ regime has been maddening: [ britannica book of the year 1975—events of 1974, p. 567]. the name, ―so many convicts went mad or died as a consequence of the solitary regime that by the mid- 19th century it was generally abandoned...‖ the ‗separate system‘, the ―silent system‖, the ―hole‖ and other variants possess the same vice. in the present case we are satisfied that what reigns in tihar for ‗condemned‘ prisoners is sound-proof, sight-proof, society-proof cellular insulation which is a first cousin to solitary confinement. … 107. since arguments have been addressed, let us enquire what are the vital components of solitary confinement?. absent statutory definition, the indication we have is in the explanation to para 510 of the jail manual: ―solitary confinement means such confinement with or without labour as entirely secludes the prisoner both from sight of, and communication with, other prisoners.‖ 108. the hard core of such confinement is (a) seclusion of the prisoner, (b) from sight of other prisoners, and (c) from communication with other prisoners. to see a fellow being is a solace to the soul. communication with one's own kind is a balm to the aching spirit. denial of both, w.p. (crl) 441/2015 page 56 of 95 the matter with complete segregation superimposed, is the journey to insanity. to test whether a certain type of segregation is, in indian terms, solitary confinement, we have merely to verify whether interdict on sight and communication with other prisoners is imposed. it is no use providing view of or conversation with jail visitors, jail officers or stray relations. the crux of is communication with other prisoners in full view. bed fellows in misery have heartloads to unload and real conversation between them has a healing effect. now that we have an indian conceptualisation of solitary confinement in the prison manual itself, lexical exercises, decisional erudition from other countries and lagomachic niceties with reference to law dictionaries are supererogatory. even the backward psychiatry of the jail manual considers continuation of such confinement as ―likely to prove injurious to mind or body‖ or even prone to make the person ―permanently unfit to undergo such confinement‖ [vide para 512(7) and (9) of the jail manual]..109. in words and phrases (permanent edn.) solitary confinement as a punishment is regarded as ―the complete isolation of the prisoner from all human society and his confinement in a cell of considerable size so arranged that he had no direct intercourse or sight of any human being and no employment or instruction.‖ it is worthwhile comparing the allied but less harsh confinement called ―close confinement‖ which means ―such custody, and only such custody as will safely secure the production of the body of the prisoner on the day appointed for his execution.‖ 110. a more practical identification of solitary confinement is what we find in black's law dictionary: ―in a general sense, the separate confinement of a prisoner, with only occasional access of any other person, and that only at the discretion of the jailor, in a stricter sense, the complete isolation of a prisoner from all human society and his confinement in a cell so arranged that he has no direct intercourse with or sight of any human being, and no employment or instruction.‖ w.p. (crl) 441/2015 page 57 of 95 complete isolation from all human society is solitary confinement in its stricter sense. the separate confinement of a person with occasional access of other persons is also solitary confinement. (emphasis supplied) 76. v.r. krishna iyer, j.concluded as under: “(2) i hold that solitary confinement, even if mollified and modified marginally, is not sanctioned by section 30 for prisoners ―under sentence of death‖. but it is legal under that section to separate such sentences from the rest of the prison community during hours when prisoners are generally locked in. i also uphold the special watch, day and night, of such sentences by guards. infraction of privacy may be inevitable. but guards must concede minimum human privacy in practice.” (emphasis supplied) 77. the test to determine whether the confinement was solitary or not remains seclusion from sight and communication from other prisoners. it is not necessary that such seclusion must be absolute and as was the case with mr.batra, even quasi-solitary confinement is not allowed. for the same reason, the reliance placed by the learned counsel for the respondents upon one line in paragraph 92 of the judgment is misplaced as it misses the true import of sunil batra (supra). even otherwise, it is settled law that a single line cannot be dissected from a judgment and treated as binding precedent [see commissioner of income tax v. sun engineering works (p) ltd., (1992) 4 scc363(paragraph 39)]..78. the full bench of the supreme court in shatrughan chauhan (supra) after referring to sunil batra (supra) observed that additional and separate punishment of solitary confinement was not w.p. (crl) 441/2015 page 58 of 95 authorized by law. at the same time, the court refused to interfere on that ground.79. in ajay kumar pal (supra), unlawful solitary confinement coupled with delay led to the supreme court to commuting the punishment of the convict. the relevant portion reads as under: the petitioner “10. in the light of the enunciation of law by this court, the petitioner could never have been ―segregated‖ till his mercy petition was disposed of. it is only after such disposal that he could be said to be under a finally executable death sentence. the law laid down by this court was not adhered to at all while confining in solitary confinement right since the order of death sentence by the first court. in our view, this is complete transgression of the right under article 21 of the constitution causing incalculable harm to the petitioner.11. the combined effect of the inordinate delay in disposal of mercy petition and the solitary confinement for such a long period, in our considered view has caused deprivation of the most cherished right. a case is definitely made out under article 32 of the constitution of india and this court deems it proper to reach out and grant solace to the petitioner for the ends of justice. we, therefore, commute the sentence and substitute the sentence of life imprisonment in place of death sentence awarded to the petitioner. the writ petition thus stands allowed.” (emphasis supplied) 80. in the present case, for the period 14.09.2011 and 20.10.2014, it emerges that the convicts were housed in separate rooms with separate verandahs and separate toilets, though they ate food together. this is clearly the first cousin of solitary confinement, which was imposed upon the petitioner. the same was imposed in the absence of a judicial order and when the petitioner was not „under sentence of death‟ inasmuch as the mercy petition was rejected by the president w.p. (crl) 441/2015 page 59 of 95 only on 05.05.2014 [see sunil batra (supra) (paragraphs 197 (5) and 223].. thus, we find that the petitioner was illegally kept in solitary confinement despite not being „under a sentence of death‟ for a period of about 3 years. improper exercise of power81 the last ground urged by dr.chaudhary is in respect of improper exercise of power by the governor and the president of india. he submits that the power under article 72 and 161 is justifiable under a strict and narrow scope by the constitutional courts.82. learned counsel for the petitioner submits that the numerous relevant considerations were ignored by the union government as well as the state government while tendering their advice. the submission regarding relevant consideration alleged to have been ignored are below:82. 1 the trial court record and the police diary were not considered by the union government. learned counsel submits that it is patent from the counter affidavits filed before this court that despite numerous reminders being sent to the state government by the union government, the trial court record and the police diary were never furnished. the union government then decided to process the mercy petition without these documents. it has been submitted that these documents were crucial and vital for the adjudication of the mercy petition, which is evident from the fact that four reminders were sent by the respondent no.1. it is submitted that these documents were essential to fulfil one of the guidelines issued by the respondent no.1 i.e. fixation of responsibility in gang murder cases. our attention was w.p. (crl) 441/2015 page 60 of 95 also diverted to the word “shall” contained in rule v of the instructions issued by the ministry of home affairs, already extracted in paragraph 34 aforegoing. 82.2 the second relevant consideration ignored by both the union and the state governments was the mitigating circumstances noted by the trial court in its judgment in paragraph 121. the trial court had considered that no previous conviction, young age and the fact that the petitioner stayed put even during a jail break were mitigating circumstances weighing in favour of the petitioner. these have not been considered by the respondents. 82.3 it is next submitted that the recommendation of the jail superintendent was not considered by either of the respondents. our attention was drawn to the opinion of the jail superintendent, wherein he had recommended in favour of the petitioner herein. it has been submitted that it is the jail superintendent who interacts on a daily basis with the convicts and thus, is the best position to opine as to their character, reformation, penitence and whether they posed any threat to the prison population and the guards. he draws credence in his submission by relying upon paragraph 224 of shatrughan chauhan (supra). 82.4 learned counsel contends that the conduct of the prisoner in prison was not considered by the respondents. he submits that the petitioner did not try to escape even during a jail break, which shows that the petitioner had reformed, repented to his crime and was willing to submit to the due process of law. reliance is placed on satpal and another v. state of haryana and others, (2000) 5 scc170and w.p. (crl) 441/2015 page 61 of 95 narayan dutt and others v. state of punjab and another, (2011) 4 scc353(paragraph 25). 82.5 the duration of custody already undergone by the petitioner was not considered by the respondents. 82.6 the delay occasioned in deciding the mercy petition was not considered by the respondents. 82.7 the final relevant factor not considered was the young age of the petitioner on the date of the commission of the offence. dr.chaudhary submits that the petitioner was actually 18 years 2 months old on the date of the commission, while he had been wrongly shown to be 23 years. this fact was brought on record during the proceedings before the apex court in his review petition and was admitted by the counsel for the respondents. it is submitted that as per the guidelines, age is a very relevant consideration for the government in deciding whether or not the death sentence should be commuted. at the same time, it has been submitted that a fresh mercy petition has been moved highlighting this aspect on 24.05.2014.83. it has also been contended by the learned counsel for the petitioner that extraneous circumstances had also been considered. dr.chaudhary submits that along with the affidavit filed by the respondent no.2 documents have been placed on record showing inputs being called for from various functionaries; however, these documents are with reference to pre-mature release and not in reference to commutation of death sentence. learned counsel had extensively taken us through these documents to show that the inputs were for pre-mature release and the whole exercise was conducted w.p. (crl) 441/2015 page 62 of 95 under rule 775 of the m.p. jail manual which has been extended to the state of chhattisgarh (hereinafter the „jail manual‟). drawing attention to rule 775, it is submitted that the rule clearly applies to prisoners other than those under a sentence of death. it has been submitted that the considerations which are germane and relevant for deciding whether or not a prisoner‟s death sentence should be commuted are qualitatively different from those which apply to pre- mature release. dr.chaudhary submits that the petitioner, in law, could not have been granted pre-mature release prior to commutation of sentence. only prisoners sentenced to life imprisonment or to a term of imprisonment can be granted pre-mature release. learned counsel submits that a similar factual scenario had arisen in peoples’ union for democratic rights (pudr) (supra) wherein the state government had processed the convict‟s mercy petition under rules which strictly excluded death sentence prisoners and only applied to other prisoners. the relevant paragraphs read are under: the part of 38. … secondly, it is significant that in a matter as crucial as the fate of a death convict, there was a total lack of clarity on the applicability of its government order dated 13 april 205. ex facie, the government dated 13 april 2005 does not apply to cases of mercy petitions submitted by convicts under the sentence of death. the subject of the government order makes the position clear and we extract it in extensor: the state government on w.p. (crl) 441/2015 page 63 of 95 this is made further evident by para 2 of the government order. the government order, inter alia, requires an application of mind to various circumstances many of which have no bearing on a convict who has been sentenced to death. yet, as the counters which have been filed by the state government indicate, the matter was initially processed as if the government order dated 13 april 2005 applied to the situation. thirdly, as we have also noted from the file it was the prison section which indicated in its file noting that matters relating to the grant of mercy to death convicts would not fall within its purview under the business rules of 1975 and that the matter would have to be proceeded for consideration before the law department. the principal secretary (home) agreed with this position. nonetheless he chose it fit to record his own opinion that the case is not fit for the grant of mercy. having taken the firm position that the home department was not entitled to consider the matter in the first place, it defies explanation as to how a view was expressed on whether or not the petition deserved the grant of mercy by the principal secretary (home). such an observation was clearly beyond jurisdiction. this glaring lapse was compounded when the matter went to the law department. the law department proceeded on the basis that there was an opinion of the home secretary recommending the rejection of mercy. the principal secretary (law), as the file would indicate, has not applied his mind independently at all. the manner in which the file has progressed reveals a disturbing state of affairs. evidently, the state government had no processes and systems in place to deal with or streamline the disposal of mercy petitions filed under article 161 of the constitution of death convicts. surely, a matter as serious as one impinging upon the right to life of a convict cannot be dealt with in such a cavalier fashion.” (emphasis supplied) 84. mr.chawla, learned counsel for the union, admits that the trial court record and the police diary were never received by the union w.p. (crl) 441/2015 page 64 of 95 government, but submits that the non-receipt of the documents is not fatal to the decision of the president. it is further submitted that the word „shall‟ contained in rule v of the instructions is only in respect of forwarding the petition and not qua the records of the case. it is submitted that these are instructions only and not statutory rules which can vitiate the order in case they are not strictly complied with. therefore, these instructions are merely directory and not mandatory. reliance is placed on may george v. special tehsildar and others, (2010) 13 scc98(paragraphs 15-19).85. it is also submitted by the learned counsel for the union government that the attempt of the petitioner to make the instructions mandatory would tie the hands of the president. it would be susceptible to misuse wherein the state government can ensure the commutation of a death sentence by withholding documents.86. it is next contended that the petitioner has also failed to show any prejudice owing to the same. to this end, learned counsel has relied upon the judgment of the apex court in state bank of patiala and others v. s.k. sharma, (1996) 3 scc364(paragraphs 32 and 33).87. in response to the submission that the actual age of the petitioner was not considered, mr.chawla states that the ground was never urged by the petitioner in his mercy petition. he submits that the factor was also raised before the supreme court when the review petition was filed, but has been rejected as the review stands dismissed. thus, the aspect of age has already been considered by the supreme court and found that it was not relevant. w.p. (crl) 441/2015 page 65 of 95 88. on behalf of the respondent no.2/state of chhattisgarh, mr.jha submitted that the mercy petition of the petitioner was never treated as one of pre-mature release. all along it was treated as a mercy petition from a prisoner awarded death sentence. he has drawn our attention to the mercy petition itself to point out that it clearly mentions that the prisoner has been awarded death penalty. he additionally contended that the petitioner has failed to show any prejudice occasioned owing to the mentioning of rule 775. he also relies upon the judgment of the supreme court in s.k. sharma (supra).89. mr.jha, learned counsel for respondent no.2, has also submitted that in peoples’ union for democratic rights (pudr) (supra) [paragraph 68 (iv)]. the mistake had led to the petition being processed by the wrong department, while in the present case the petition was all along treated as that of a death convict.90. prior to dealing with the rival contentions of the parties, we deem it appropriate to revisit the law on the power of the courts to review the decisions of the president and the governor under articles 72 and 161 of the constitution.91. a constitution bench of the supreme court in maru ram & ors. v. union of india and others, air1980sc2147 (1981) 1 scc107was approached by more than two thousand prisoners on life imprisonment (labelled as „lifers‟ by krishna iyer j.) laying a challenge to section 433-a of the code of criminal procedure. the apex court considered the power of remission and commutation by both by the governments in exercise of its statutory power and by the president and the governors exercising constitutional mandate held w.p. (crl) 441/2015 page 66 of 95 that the same is not beyond judicial review. it could be subject to limited judicial review. v.r. krishna iyer, j., giving the opinion for the majority, held as under: “62. an issue of deeper import demands our consideration at this stage of the discussion. wide as the power of pardon, commutation and release (articles 72 and161) is, it cannot run riot; for no legal power can run unruly like john gilpin on the horse but must keep sensibly to a steady course. here, we come upon the second constitutional fundamental which underlies the submissions of counsel. it is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. we proceed on the basis that these axioms are valid in our constitutional order.63. the jurisprudence of constitutionally canalised power as spelt out in the second proposition also did not meet with serious resistance from the learned solicitor-general and, if we may say so rightly. article 14 is an expression of the egalitarian spirit of the constitution and is a clear pointer that arbitrariness is anathema under our system. it necessarily follows that the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must be informed by the finer canons of constitutionalism. … it is the pride of our constitutional order that all power, whatever its source, must, in its exercise, anathematise arbitrariness and obey standards and guidelines intelligible and intelligent and integrated with the manifest purpose of the power. from this angle even the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of presidential power.64. speaking generally, lord acton's dictum deserves attention: letter to mandell (later, bishop) creighton, april 5, 1987 historical essays and studies, 1907 ―i cannot accept your canon that we are to judge pope and king unlike other men, with a favourable w.p. (crl) 441/2015 page 67 of 95 presumption that they did no wrong. if there is any presumption it is the other way, against the holders of power, increasing as the power increases.‖ likewise, edmund burke, the great british statesman gave correct counsel when he said: [ reflections on the revolution in france 7019]. ―all persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great master, author and founder of society.‖ in this expression 65. pardon, using the amplest connotation, ordains fair exercise, as we have indicated above. political vendetta or party favouritism cannot but be interlopers in this area. the order which is the product of extraneous or mala fide factors will vitiate the exercise. while constitutional power is beyond challenge, its actual exercise may still be vulnerable. likewise, capricious criteria will void the exercise. … push this logic a little further and the absurdity will be obvious. no constitutional power can be vulgarised by personal vanity of men in authority. likewise, if an opposition leader is sentenced, but the circumstances cry for remission such as that he is suffering from cancer or that his wife is terminally ill or that he has completely reformed himself, the power of remission under articlesmay ordinarily be exercised and a refusal may be wrong-headed. if, on the other hand, a brutal murderer, bloodthirsty in his massacre, has been sentenced by a court with strong observations about his bestiality, it may be arrogant and irrelevant abuse of power to remit his entire life sentence the very next day after the conviction merely because he has joined the party in power or is a close relation of a political high-up. the court, if it finds frequent misuse of this power may have to investigate the discrimination. the proper thing to do, if government is to keep faith with the founding fathers, is to make rules for its own guidance in the exercise of the pardon power keeping, of course, a large residuary w.p. (crl) 441/2015 page 68 of 95 power to meet special situations or sudden developments. this will exclude the vice of discrimination such as may arise where two persons have been convicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as religion, caste, colour or political loyalty.66. once we accept the basic thesis that the public power vested on a high pedestal has to be exercised justly the situation becomes simpler. the principal considerations will turn upon social good by remission or release. …” (emphasis supplied) 92. we note that the bench had advised the government to formulate rules to guide its power and avoid discrimination; at the same time, keeping a large residuary power to meet special situations or sudden developments. proceeding further, v.r. krishna iyer, j.concluded as under: “72. we conclude by formulating our findings: … (8) the power under articles 72 and 161 of the constitution can be exercised by the central and state governments, not by the president or governor on their own. the advice of the appropriate government binds the head of the state. no separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. (9) considerations for exercise of power under articlesmay be myriad and their occasions protean, and are left to the appropriate government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. only in these rare cases will the court examine the exercise.” (emphasis supplied) w.p. (crl) 441/2015 page 69 of 95 93. a.d. koushal, j.though concurred with the majority opinion in respect of few conclusion, did not agree with the aforegoing conclusions reached by the majority. s.m. fazal ali, j.gave a separate and concurring judgment, wherein it was held as under: “94. doubtless, the president of india under article 72 and the state government under article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions etc. this power can neither be altered, modified nor interfered with by any statutory provision. but, the fact remains that higher the power, the more cautious would be its exercise. this is particularly so because the present enactment has been passed by the parliament on being sponsored by the central government itself. it is, therefore, manifest that while exercising the powers under the aforesaid articles of the constitution neither the president, who acts on the advice of the council of ministers, nor the state government is likely to overlook the object, spirit and philosophy of section 433-a so as to create a conflict between the legislative intent and the executive power. it cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter.” (emphasis supplied) 94. thereafter, the assassinator of smt.indira gandhi had approached the apex court in kehar singh v. union of india, (1989) 1 scc204complaining that the president had refused to entertain his request for a personal hearing and rejected to re-appreciate evidence holding that the president “cannot go into the merits a case finally decided by the highest court of the land.” the constitutional bench of the supreme court rejected the first contention finding that it was not obligatory on the part of the president to provide a personal hearing; but accepted w.p. (crl) 441/2015 page 70 of 95 the second contention that the president could very well go into the merits of the case. in respect of scope of judicial review, the bench relying upon the judgment in maru ram (supra) observed as under: “11. in the course of argument, the further question raised was whether judicial review extends to an examination of the order passed by the president under article 72 of the constitution. at the outset we think it should be clearly understood that we are confined to the question as to the area and scope of the president's power and not with the question whether it has been truly exercised on the merits. indeed, we think that the order of the president cannot be subjected to judicial review on its merits except within the strict limitations defined in maru ram v. union of india (1981) 1 scr1196 1249. the function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the court. … … 13. it seems to us that none of the submissions outlined above meets the case set up on behalf of the petitioner. we are concerned here with the question whether the president is precluded from examining the merits of the criminal case concluded by the dismissal of the appeal by this court or it is open to him to consider the merits and decide whether he should grant relief under article 72. we are not concerned with the merits of the decision taken by the president, nor do we see any conflict between the powers of the president and the finality attaching to the judicial record, a matter to which we have adverted earlier. nor do we dispute that the power to pardon belongs exclusively to the president and the governor under the constitution. there is also no question involved in this case of asking for the reasons for the president's order. … we have already pointed out that the courts are the constitutional instrumentalities to go into the scope of article 72 and no attempt is being made to w.p. (crl) 441/2015 page 71 of 95 analyse the exercise of the power under article 72 on the merits. … 14. upon the considerations to which we have adverted, it appears to us clear that the question as to the area of the president's power under article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.15. …as regards the considerations to be applied by the president to the petition, we need say nothing more as the law in this behalf has already been laid down by this court in maru ram.16. learned counsel for the petitioners next urged that in order to prevent an arbitrary exercise of power under article 72 this court should draw up a set of guidelines for regulating the exercise of the power. it seems to us that there is sufficient indication in the terms of article 72 and in the history of the power enshrined in that provision as well as existing case law, and specific guidelines need not be spelled out. indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of state may be profoundly assisted by prevailing occasion and passing time. and it is of great significance that the function itself enjoys high status in the constitutional scheme.” (emphasis supplied) 95. the full bench in ashok kumar alias golu v. union of india and others, (1991) 3 scc498observed that there was no contradiction between the judgments in maru ram (supra) and kehar singh (supra) in respect of framing of guidelines for exercise of power under article 72. relying upon paragraph 16 of kehar singh (supra), the court observed as under: w.p. (crl) 441/2015 page 72 of 95 “17. …these observations do indicate that the constitution bench which decided kehar singh was of the view that the language of article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may not be able to conceive of all myriad kinds and categories of cases which may come up for the exercise of such power. no doubt in maru ram case the constitution bench did recommend the framing of guidelines for the exercise of power under articlesof the constitution. but that was a mere recommendation and not a ratio decidendi having a binding effect on the constitution bench which decided kehar singh case. therefore, the observation made by the constitution bench in kehar singh case does not upturn any ratio laid down in maru ram case. nor has the bench in kehar singh case said anything with regard to using the provisions of extant remission rules as guidelines for the exercise of the clemency powers.” (emphasis supplied) 96. in swaran singh v. state of u.p. and others, (1998) 4 scc75 the governor in exercise of his power under article 161 of the constitution had remitted the punishment of a convict undergoing life sentence for killing of one joginder singh to a period less than 2 years. this led to the bereaved son of joginder singh approaching the high court challenging the decision of the governor; the high court dismissed the writ petition on the ground that the decision was not justiciable. this led to the appeal before the full bench of the apex court. the bench found that the governor was not apprised of the vital and relevant facts about the involvement of the prisoner in five other cases, rejection of earlier clemency, conduct in jail and the substantial time spent by the convict on parole. the order of the w.p. (crl) 441/2015 page 73 of 95 governor was quashed and the matter was remanded back to the governor for fresh consideration. k.t. thomas, j., giving the opinion for the bench, held as under: “12. in view of the aforesaid settled legal position, we cannot accept the rigid contention of the learned counsel for the third respondent that this court has no power to touch the order passed by the governor under article 161 of the constitution. if such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it.13. in the present case, when the governor was not posted with material facts such as those indicated above, the governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner. conversely, the order now impugned fringes on arbitrariness. what the governor would have ordered if he were apprised of the above facts and materials is not for us to consider now because the court cannot then go into the merits of the grounds which persuaded the governor in taking a decision in exercise of the said power. thus, when the order of the governor impugned in these proceedings is subject to judicial review within the strict parameters laid down in maru ram case and reiterated in kehar singh case we feel that the governor shall reconsider the petition of doodh nath in the light of those materials which he had no occasion to know earlier.” (emphasis supplied) 97. the appellant in dhananjoy chatterjee alias dhana v. state of w.b. and others, (2004) 9 scc751had approached the supreme court aggrieved by the dismissal of his writ petitions by the high court impugning the decision of the governor rejecting his mercy petition. it was contended that the governor was not apprised of the relevant w.p. (crl) 441/2015 page 74 of 95 facts and material and further that there was no proper application of mind. upon perusing the original record, the court found that relevant material including the mitigating factors were not placed before the governor and consequently, the order was quashed remanding the matter back for fresh orders of the governor. while coming to the conclusion, the bench held that the material facts should be placed before the governor and the failure to do so, had deprived the governor of the opportunity of exercising his power in a fair and just manner vitiating the decision.98. a division bench of the apex court in epuru sudhakar and another v. govt. of a.p. and others, (2006) 8 scc161was dealing with a challenge to a grant of remission by the governor under article 161. arijit pasayat, j., in his opinion, extensively dealt with the scope of judicial review and concluded as under: “34. the position, therefore, is undeniable that judicial review of the order of the president or the governor under article 72 or article 161, as the case may be, is available and their orders can be impugned on the following grounds: (a) that the order has been passed without application of mind; (b) that the order is mala fide; (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials have been kept out of consideration; (e) that the order suffers from arbitrariness.” 99. s.h. kapadia, j.in his concurring opinion observed as under: “65. exercise of executive clemency is a matter of discretion and yet subject to certain standards. it is not a matter of privilege. it is a matter of performance of official duty. it is vested in the president or the governor, as the case may be, w.p. (crl) 441/2015 page 75 of 95 not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. this discretion, therefore, has to be exercised on public considerations alone. the president and the governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves. however, this power is an enumerated power in the constitution and its limitations, if any, must be found in the constitution itself. therefore, the principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision. this is the basic working test to be applied while granting pardons, reprieves, remissions and commutations.66. … the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. it can no longer be said that prerogative power is ipso facto immune from judicial review. an undue exercise of this power is to be deplored. considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. these are prohibited grounds. the rule of law is the basis for evaluation of all decisions. the supreme quality of the rule of law is fairness and legal certainty. the principle of legality occupies a central plan in the rule of law. every prerogative has to be subject to the rule of law. that rule cannot be compromised on the grounds of political expediency. to go by such considerations would be subversive of the fundamental principles of the rule of law and it would amount to setting a dangerous precedent. the rule of law principle comprises a requirement of ―government according to law‖. the ethos of ―government according to law‖ requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the president or the governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future. w.p. (crl) 441/2015 page 76 of 95 67. the power under article 72 as also under article 161 of the constitution is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case. the exercise of power depends upon the facts and circumstances of each case and the necessity or justification for exercise of that power has to be judged from case to case. it is important to bear in mind that every aspect of the exercise of the power under article 72 as also under article 161 does not fall in the judicial domain. in certain cases, a particular aspect may not be justiciable. however, even in such cases there has to exist requisite material on the basis of which the power is exercised under article 72 or under article 161 of the constitution, as the case may be. in the circumstances, one cannot draw the guidelines for regulating the exercise of the power.68. as stated above, exercise or non-exercise of the power of pardon by the president or the governor is not immune from judicial review. though, the circumstances and the criteria to guide exercise of this power may be infinite, one principle is definite and admits of no doubt, namely, that the impugned decision must indicate exercise of the power by application of manageable standards and in such cases courts will not interfere in its supervisory jurisdiction. by manageable standards we mean standards expected in functioning democracy. a pardon obtained by fraud or granted by mistake or granted for improper reasons would invite judicial review. the prerogative power is the flexible power and its exercise can and should be adapted to meet the circumstances of the particular case. the constitutional justification for judicial review, and the vindication of the rule of law remain constant in all areas, but the mechanism for giving effect to that justification varies.69. in conclusion, it may be stated that, there is a clear symmetry between the constitutional rationale for review of statutory and prerogative power. in each case, the courts have to ensure that the authority is used in a manner which is consistent with the rule of law, which is the fundamental principle of good administration. in each case, the rule of w.p. (crl) 441/2015 page 77 of 95 law should be the overarching constitutional justification for judicial review. the exercise of prerogative power cannot be placed in straitjacket formula and the perceptions regarding the extent and amplitude of this power are bound to vary. however, when the impugned decision does not indicate any data or manageable standards, the decision amounts to derogation of an important constitutional principle of rule of law.” (emphasis supplied) 100. the bench ultimately found that irrelevant and extraneous materials had entered into the decision-making process, thereby vitiating it. the order was set-aside and the matter was remanded back to the governor.101. in narayan dutt (supra), the supreme court quashed the decis ion of the governor granting pardon under article 161 on two counts: first, the pendency of appeals of the accused was not brought to the notice of the governor; and second, that the governor had trenched upon the judicial domain by pronouncing the innocence of the accused. thus, the matter was quashed and remanded back for fresh consideration.102. recently, in shatrughan chauhan (supra), the full bench of the supreme court observed as under: “20. as already emphasised, the power of the executive to grant pardon under articlesis a constitutional power and this court, on numerous occasions, has declined to frame guidelines for the exercise of power under the said articles for two reasons: firstly, it is a settled proposition that there is always a presumption that the constitutional authority acts with application of mind as has been reiterated in bikas chatterjee v. union of india [bikas chatterjee v. union of india, (2004) 7 scc634:2004. scc (cri) 2018]. . secondly, this court, over the span of years, unanimously took the view that considering the nature of w.p. (crl) 441/2015 page 78 of 95 power enshrined in articles 72/161, it is unnecessary to spell out specific guidelines. … 22. nevertheless, this court has been of the consistent view that the executive orders under articlesshould be subject to limited judicial review based on the rationale that the power under articlesis per se above judicial review but the manner of exercise of power is certainly subject to judicial review. accordingly, there is no dispute as to the settled legal proposition that the power exercised under articlescould be the subject-matter of limited judicial review. … … 25. a perusal of the above case law makes it clear that the president/governor is not bound to hear a petition for mercy before taking a decision on the petition. the manner of exercise of the power under the said articles is primarily a matter of discretion and ordinarily the courts would not interfere with the decision on merits. however, the courts retain the limited power of judicial review to ensure that the constitutional authorities consider all the relevant materials before arriving at a conclusion.” (emphasis supplied) 103. from the aforegoing, it is clear that since the decision in maru ram (supra) it is well-settled that the constitutional mandate under articles 72 and 161 reposed by the citizens in the executive cannot be used in an unbridled manner without any judicial scrutiny whatsoever. it is subject to limited judicial review. at the same time, there is a presumption that the constitutional authority acts with application of mind. thus, it is the decision of the president and governor being the heads of the indian state and its constituent states that is immune from review. but that decision, is taken upon the aid and advice of the ministers and this action on the part of the ministers is not immune w.p. (crl) 441/2015 page 79 of 95 and reviewable by the constitutional courts. it has been held that constitutional power should be exercised in tune with the finer canons of constitutionalism and not arbitrarily or mala fidely. all relevant aspects must be placed by the ministers before the president/governor and the decision should not be based on any extraneous material. as to what amounts to relevant consideration has to be judged on a case to case basis as the power is of the widest amplitude and can contemplate a myriad kinds and categories of cases. wherever the courts have found that the relevant considerations have not been taken into account or extraneous considerations have crept in, the orders of the executive have been set-aside and the matter remanded for fresh consideration.104. we may add that from the aforegoing conspectus of judicial pronouncements it is patent that once the constitutional court has come to a conclusion that a fact was a relevant consideration, but not placed or the order has been passed on extraneous consideration, the courts have inevitably quashed the orders. no question of substantial compliance or the test of prejudice can arise. thus, any reliance upon the judgment in s.k. sharma (supra) is misplaced. further the judgment is in the context of disciplinary proceedings in service jurisprudence where the considerations, tests and implications are wholly different.105. thus, we proceed to analyse the case before us. the original records had been handed over in court on 09.03.2017 and have been meticulously examined by us. w.p. (crl) 441/2015 page 80 of 95 106. prior to dealing with the contentions, an objection has been raised that since these aspects were raised before the supreme court in review, the petitioner is precluded from raising the same before us. we reject the contention at the threshold itself as the review by the apex court is of its own judgment is a continuation of the judicial process. it is adjudicated whether the grounds have any bearing upon the judicial record and not the power of clemency. the proper exercise of clemency power was never before the supreme court. therefore, it cannot be said that the apex court returned any finding on the relevancy of these factors for powers under article 72 and 161. thus, we reject the objection urged by the counsel for the respondents [see kehar singh (supra) (paragraphs 10 and13) and shatrughan chauhan (supra) (paragraph 14)]..107. dr.chaudhary has contended that numerous relevant considerations had not been placed. upon examining the original records, the following emerges: factor alleged to have not been considered by: placed state governme nt union governme nt mitigating circumstances noticed by the trial court recommendation of superintendent the jail conduct in prison duration of custody delay in deciding mercy petition young age   only its receipt is mentioned.           (23 years) note: submission with regard to trial court record and police diary has been dealt with separately. w.p. (crl) 441/2015 page 81 of 95 108. from the aforegoing, it is clear that the relevant considerations of the mitigating circumstances, recommendation of the jail superintendent and the young age of the petitioner were not placed before the governor. thus, denying the governor the opportunity to apply his mind on all these considerations.109. in respect of the conduct in prison and the duration of custody not having been placed before the president and the governor, we are unable to come to a conclusion that the same were relevant considerations for commutation of a death sentence. if anything, the factors are already implicit in the recommendation of the jail superintendent. as regards reliance placed upon satpal (supra), the judgment is in the background of remission of life sentence and not commutation of death penalty. the relevant portions of the judgment reads as under: “6. …that apart, the governor has not been made aware of as to what is the total period of sentence the accused has really undergone, and if at all has undergone any sentence. when an accused is convicted of the heinous offence of murder and is sentenced to imprisonment for life the authority who has been conferred with power to grant pardon and remission of sentence under article 161 of the constitution must be made aware of the period of sentence in fact undergone by the said convict as well as his conduct and behaviour while he has been undergoing the sentence which would all be germane considerations for exercise of the power. not being aware of such material facts would tend to make an order of granting pardon arbitrary and irrational, as has been held by this court in swaran singh case.…” (emphasis supplied) w.p. (crl) 441/2015 page 82 of 95 110. further, the supreme court in narayan dutt (supra) (paragraph 24 and25) has merely cited satpal (supra), while the relevant considerations ignored therein were different. what amounts to a relevant consideration may be different in accordance with the purpose for which the power is sought to be invoked. thus, in the present case it cannot be said that the conduct of the prisoner and the duration in custody were relevant considerations.111. dr.chaudhary has also contended that the trial court record and the case diary were not sent and thus, the decision of the president is vitiated. upon perusal of the original records, it is patent that the documents were never sent to the central government. the documents were sent on 07.05.2014 by the superintendent of police, koriya while the mercy petition had been rejected by the president two days back on 05.05.2014. the note placed before the president has duly mentioned of the fact that despite request, the state government had failed to send the documents and the case was suitably processed to avoid delay.112. learned counsel for the petitioner has placed heavy reliance upon rule v of the instructions framed by the ministry of home affairs wherein it has been stated that whenever a mercy petition is to be forwarded to the union government, the state “shall forward such petition as expeditiously as possible along with the records of the case.” we are unable to accept that the same, in any way, can be read to lay down that the „records of the case‟ are a relevant consideration in every case and the denial of the same would vitiate the decision. the rule has been framed to ensure that there is no delay in receiving w.p. (crl) 441/2015 page 83 of 95 all the documents, which may be required to process the case. the supreme court has also deprecated upon calling of records in a piecemeal fashion [see shatrughan chauhan (supra) (paragraph 103)]..113. we also note that the ministry of home affairs has framed broad guidelines generally considered while examining the mercy petition, which have been stated in the counter affidavit filed by the respondent no.1. we deem it appropriate to reproduce the same below: “the broad guidelines generally considered while examining the mercy petition in the ministry of home affairs, states that clemency is justified on the following grounds:-"i. personality of the accused (such as age, sex or mental deficiency) or the circumstances of the case (such as provocation or other similar justification). cases in which the appellate court has expressed its doubt as to the reliability of the evidence and has nevertheless decided on conviction. ii. iii. cases where it is alleged that fresh evidence is obtainable mainly with a view to seeking whether fresh enquiry is justified. iv. where the high court has reversed on appeal an acquittal by the session judge or has on appeal enhanced the sentence. difference of opinion in a bench of two judges necessitating reference to the third judge of the high court. v. vi. consideration of evidence in fixation of responsibility in gang murder cases. vii. long delays in the investigation and trial etc.” (emphasis supplied) 114. while examining the original record, it came to our notice that the guidelines have been adhered to by the union government in letter w.p. (crl) 441/2015 page 84 of 95 and spirit. this a welcome step in furtherance of the recommendation of the constitution bench of the apex court in maru ram (supra). the same would minimize arbitrariness and reduce the chances of discriminatory treatment.115. as a necessary consequence, the question which arises is as to whether these guidelines can be said to be mandatory in nature, viz. the failure to consider any of these aspects would ipso facto vitiate the decision of the president owing to non-consideration of relevant material. we think not. it has been repeatedly held that the relevant considerations under exercise of powers under article 72 and 161 of the constitution are to be adjudged on a case to case basis. no fixed guidelines can be framed as the power can contemplate myriad kinds and categories of cases, but at the same time, no consideration can be said to be wholly irrelevant [see maru ram (supra); kehar singh (supra); ashok kumar alias golu (supra); epuru sudhakar (supra); and shatrughan chauhan (supra)].. we are further fortified in our view by the word „broadly‟ used for the guidelines.116. coming to the case at hand, the note prepared for the president clearly states that the trial court record and the case diary have not been received from the state government; but a conscious decision was taken to process the matter. while following guideline vi., it was concluded that the specific role of the petitioner could not be determined. being well-aware of this impediment, the president exercised his power under article 72 of the constitution. it is not a consideration which was not placed before the president as he was apprised of the lack of the documents. this seems to introduce a third w.p. (crl) 441/2015 page 85 of 95 category of factors in death-row jurisprudence. generally all considerations could be categorised into two: first, relevant consideration, ignorance of which shall vitiate the decision; and second, one which is not relevant having no bearing on the decision. the third which arises is the consideration which has borne upon the mind of the president and yet, he deems the consideration irrelevant and proceeds on that basis. in such a scenario, it may not be favourable for courts to come to a divergent conclusion as the same would amount to trenching upon the domain reserved for the sovereign. the presumption remains that the president acts with due application of mind [see bikas chatterjee v. union of india, (2004) 7 scc634(paragraphs 10-14)]..117. accordingly, we do not find that the ascertaining of individual responsibility or the analysis of the case diary or the trial court record were relevant considerations.118. one of the factors contended before us is that the actual age of the petitioner was not considered. it is true that in the note prepared for the president, the age of the petitioner on the date of the crime has been taken to be 23 years and not 18 years 2 months as alleged before us. we notice that in the mercy petition no such ground was urged and even in the note prepared for the president it has specifically been stated that the “mercy petition reveals no new facts or evidence warranting reconsideration of the case or quantum of punishment.” thus, what in effect has been argued before us is that in every case it would be incumbent upon the government to ascertain whether the age on record is the actual age or not. we are view that an enquiry w.p. (crl) 441/2015 page 86 of 95 into every fact cannot be mandated at this stage. if something has been specifically urged in the mercy petition, then it may be a different story; but in its absence, it cannot be said to be incumbent upon the government to ascertain whether the age on record was correct or not. therefore, this contention must be rejected. we also note that a second mercy petition dated 24.05.2014 has already been moved in this regard.119. now we proceed to analyse the submission of dr.chaudhary in respect of extraneous circumstances. the facts portray a grim picture. during the course of the hearing, we had been taken through the various inputs received from various public functionaries and how they were under rule 775 of the jail manual. the opening of rule 775 reads as under: “नियम 775. मृत्यु दण्ड प्राप्त दण्ण्डत कै ददयों से भिन्ि अन्य कै ददयों द्वारा दी गई दया याचिकाओं पर काययवाही करिे के भऱए अिुदेश- मृत्यु दण्ड प्राप्त दण्ण्डत कै ददयों से भिन्न अन्य कै ददयों द्वारा दया के भऱए दी गई प्रत्येक याचिका जेऱ अधीऺक द्वारा सम्बंचधत ण्जऱा मण्जस्ट्रेट के माध्यम से सरकार के आदेशाथथ अग्रेषषत की जायेगी। …” 120. the translated version reads as: “775. instructions for dealing with petition for mercy from prisoners other than condemned prisoners.- (1) every petition for mercy from prisoners other than condemned prisoners shall be forwarded by the jail superintendent through the district magistrate concerned, for the orders of the government. …” (emphasis supplied) 121. from even a cursory perusal of the same, it is clear that the rule is inapplicable to mercy petitions received from condemned prisoners. w.p. (crl) 441/2015 page 87 of 95 the same is patent from the specific words “मृत्यु दण्ड प्राप्त दण्ण्डत कै ददयों से भिन्न /from prisoners other than condemned prisoners” used therein. the correct rule applicable to mercy petitions from death convicts is rule 777 of the jail manual, the relevant portion of which reads as under: “नियम 777. दया के भऱये याचिका- (1) मृत्यु दण्डादेश के अधीन दण्ण्डत व्यण्तत ने यदद ऩहऱे से ही दया के भऱए याचिका प्रस्ट्तुत न की हो, तो उसे दया के भऱये याचिका तैयार करने और प्रस्ट्तुत करने के भऱये उस तारीख को, ण्जसको कक जेऱ अधीऺक उसे यह सूचित करे कक उच्ितम न्यायऱय ने उसकी अऩीऱ खाररज कर दी है या उच्ितम न्यायऱय को अऩीऱ करने की षववेश इजाजत के (s.l.p.) भऱये उसके द्वारा प्रस्ट्तुत ककया गया आवेदन-ऩत्र ननरस्ट्त कर ददया गया है ऩश्िात् उस तारीख को अऩवण्जथत करते हुए सात ददन का समय अनुऻात ककया जायगा।” 122. the translated version is under: “777. petition for mercy.- (1) a convict under sentence of death shall be allowed if he has not already submitted a petition for mercy for the preparation and submission of a petition for mercy 7 days after and exclusive of the date on which the superintendent of jail informs him of the dismissal by the supreme court of his appeal or of his application for special leave to appeal to the supreme court;” (emphasis supplied) 123. from the aforegoing, it is clear that the applicable rule was rule 777 of the jail manual and not rule 775. noticing the discrepancy, this court by order dated 21.05.2015 had directed the respondent no.2 to file an affidavit meeting “the allegation in the rejoinder affidavit that the mercy petition filed by the petitioner was examined under rule 775 w.p. (crl) 441/2015 page 88 of 95 which relates to premature release.” the affidavit has been filed stating that the same is a mere „oversight‟ and that the mercy petition “was never treated as a petition for premature release under rule 775.” 124. we have gone through record, it bears out that all the inputs received were indeed under rule 775. further, the same are in relation of समय ऩूवथ मुण्तत/pre-mature release and not commutation of sentence. it is clear that the same cannot be said to be an oversight. what the district magistrate, police superintendent and the jail superintendent have exercised their mind upon is as to the suitability of the petitioner for pre-mature release and not commutation of death sentence.125. the considerations bearing in mind in respect of the two are different and operate on different planes. when the death sentence of a convict is commuted to one of life, he continues to be a prisoner lodged in prison but only that the hangman no longer waits for him. for pre- mature release, the germane considerations would be qualitatively different. in the former, it inter alia may be seen whether the convict has reformed, repented to his crime, his presence in the prison would pose a threat to the prison population or the guards. while deciding the latter, it would have to be seen whether the convict is safe to be introduced back into the society, his recidivism, etc. generally speaking, an authority which recommends pre-mature release would also recommend commutation; but that may not be the case other way around. thus, the inputs given by the district magistrate and the police superintendent were wholly extraneous for deciding the mercy petition. while the whole decision of the governor primarily rests w.p. (crl) 441/2015 page 89 of 95 upon these inputs to the exclusion of the recommendation of the jail superintendent.126. while analysing the original records, it came to light that even the note prepared for the governor was under the impression that the petitioner had sought pre-mature release. the final note for the governor reads as under: “ववषय:— मृत्यु दंड से दण्ण्डत बंदी सोिू सरदार वपता ज्ञािी भसंह ववश्वकमाय का नियम 775 के अंतगतय दया याचिका प्रकरण। —00— पूवय पृष्ठ से:— कृ ऩया नस्ट्ती ऩर व्यवण्स्ट्थत संऺेषऩका का अवऱोकन करने का कष्ट करें। प्रकरण में प्रशासकीय अनुमोदन प्राप्त है (ऩृष्ठ-2/एन/ )। प्रकरण में ऩुभऱस अधीऺक एवं ण्जऱा दंडाचधकारी एवं षवचध षविाग द्वारा समय ऩूवथ मुण्तत की अनुशंसा नहीं की गयी है, अतएव प्रशासकीय षविाग द्वारा िी बंदी को समय ऩूवथ मुण्तत की अनुशंसा नहीं की जाती है। िारत के संषवधान के अनुच्छेद-161 के तहत दया याचिका प्रकरण में अंनतम ननणथय माननीय राजऩाऱ महोदय द्वारा भऱया जाना है। अतः प्रस्ट्तुत प्रकरण में माननीय राजऩाऱ महोदय के आदेश प्राप्त करने हेतु नस्ट्ती प्रस्ट्तुत है। sd./- 1/4/13 (एन.के .असवाऱ) प्रमुख सचिव, गृह (जेऱ) sd./4.13 (सुननऱ कु मार) मुख्य सचिव माननीय मुख्यमंत्रीजी w.p. (crl) 441/2015 page 90 of 95 माननीय राजऩाऱ महोदय मा. मुख्य मंत्री जी sd./4 शासन के मत से सहमत sd./- sd./- 10.4” 127. we have got the note translated, which is as under: “subect:— mercy petition of condemned prisoner sonu sardar son of gyani singh vishvakarm under rule 775. from previous page:— —00— kindly peruse the brief prepared on the proposal. the proposal has received administrative approval (page 2/n/ ). the superintendent of police and district magistrate have not recommended the pre-mature release of the prisoner, therefore the administrative department has also not recommended the pre-mature release of the prisoner. under article 161 of the constitution of india the final decision upon a mercy petition is to be taken by the honourable governor. thus, the proposal for the orders of the hon. governor is submitted. chief secretary sd./- 1/4/13 (n.k.aswal) principal secretary – home(jail) sd./4.13 (sunil kumar) honourable chief minister w.p. (crl) 441/2015 page 91 of 95 sd./4 honourable governor agree with the decision of the government sd./- hon. chief minister sd./- 10.4” 128. what was put up before the governor was that the government disfavoured pre-mature release and not commutation. though the subject line mentions that the petition is from a condemned prisoner, but the whole body pertains to pre-mature release and what the government and consequently, the governor had rejected was also pre-mature release. this note had seriously prejudiced the capacity of the governor for coming to a proper decision, thus vitiating it. conclusion129 since our opinion is quite verbose, we deem it appropriate to concretise our conclusions hereunder lest the same remain vague:129. 1 there is an unexplained delay of 1 year 4 months and 13 days , which though unexplained is not unreasonable nor is inordinate to be a supervening circumstance vitiating the decisions of the governor and the president. 129.2 between the period 14.09.2011 to 20.10.2014 the petitioner was kept in illegal solitary confinement in absolute disregard of the judgment of the supreme court in sunil batra (supra). 129.3 the relevant considerations of the mitigating circumstances, recommendation of the jail superintendent and the young age of the w.p. (crl) 441/2015 page 92 of 95 petitioner were not placed before the governor depriving him of the opportunity to exercise his power in a fair and just manner. 129.4 the mercy petition was processed in an extremely cavalier and casual fashion by the state government at all stages, right upto placing the note for the governor. it was all along treated as a petition seeking pre-mature release under an inapplicable rule of the jail manual. the governor was informed that the petition is for pre-mature release and not commutation of sentence. 129.5 the inputs received from the superintendent of police and the district magistrate were extraneous considerations taken into account by the governor. even the relevant input of the jail superintendent was under the incorrect rule for the wrong purpose, which was wholly ignored by the state government and relied upon by the union government.130. therefore, it is clear that the combined effect of the supervening circumstance and the ignorance of relevant consideration as well as consideration of extraneous material has vitiated the decisions.131. at this juncture, we are posed with the question whether the case should be remanded back to the constitutional authorities for fresh orders or the sentence of the petitioner be commuted. ordinarily, when relevant considerations have been kept out or extraneous material have crept in, the matter is remanded back. however, we have also come to the finding that the petitioner was kept in solitary confinement for over three years. in shatrughan chauhan (supra), it has been held that in cases of supervening circumstance, article 21 of the constitution has been violated and the court being the enforcer w.p. (crl) 441/2015 page 93 of 95 of the fundamental rights must quash the orders commuting the sentence. the relevant portion reads as under: “50. …the concept of supervening events emerged from the jurisprudence set out in vatheeswaran and triveniben. the word ―judicial review‖ is not even mentioned in these judgments and the death sentences have been commuted purely on the basis of supervening events such as delay. under the ground of supervening events, when article 21 is held to be violated, it is not a question of judicial review but of protection of fundamental rights and the courts give substantial relief not merely procedural protection. the question of violation of article 21, its effects and the appropriate relief is the domain of this court. there is no question of remanding the matter for consideration because this court is the custodian and enforcer of fundamental rights and the final interpreter of the constitution. further, this court is best equipped to adjudicate the content of those rights and their requirements in a particular fact situation. this court has always granted relief for violation of fundamental rights and has never remanded the matter. for example, in cases of preventive detention, violation of free speech, externment, refusal of passport, etc. the impugned action is quashed, declared illegal and violative of article 21, but never remanded. it would not be appropriate to say at this point that this court should not give relief for the violation of article 21.” (emphasis supplied) 132. thus, we find that the supervening circumstance of solitary confinement coupled with the non-placement of relevant considerations and considering of extraneous considerations has vitiated the decision of the governor and the president. further, the incarceration of the petitioner in solitary confinement without any judicial order has run awry of the fundamental rights and this court, w.p. (crl) 441/2015 page 94 of 95 being the sentinel of the constitution, is bound to intervene and give relief to the petitioner.133. we, therefore, following v. sriharan alias murugan (supra), commute the sentence imposed upon the petitioner and substitute it to a sentence of imprisonment for life in place of death sentence awarded to the petitioner. life imprisonment means end of one‟s life, subject to any remission granted by the appropriate government under section 432 of the code of criminal procedure; which is, in turn, subject to the procedural checks mentioned in the said provision and further substantive check in section 433-a of the code.134. the writ petition and all pending applications are disposed of.135. we may also add that there are numerous discrepancies and falsities in the affidavits filed by the respondent no.2/state of chhattisgarh such as the ones highlighted in the table contained in paragraph 41. despite the same, we have proceeded to decide the matter in the interests of justice. at the same time, such practice is deprecated and should be taken note of by the higher authorities. g. s. sistani, j.vinod goel, j.june28h 2017 // w.p. (crl) 441/2015 page 95 of 95

Judgment:

$~ * % IN THE HIGH COURT OF DELHI AT NEW DELHI9h March, 2017 Judgment Reserved on: Judgment Pronounced on:

28. h June, 2017 + W.P.(CRL) 441/2015 SONU SARDAR .....

... Petitioner

Through Dr.Yug Mohit Chaudhary, Adv. with Ms.G.M.Padma Priya, Mr.Rishabh Sancheti, Mr.Ashish Virmani, Ms.Parijata Bhardwaj & Ms.Ragini Ahuja, Advs. THE UNION OF INDIA & ANR versus .....

... RESPONDENTS

Through Mr.Navin Chawla, Adv. with Mr.Sumit Rajput & Mr.Aditya V. Singh, Advs. for R-1/UOI. Mr.Atul Jha, Adv. with Mr.Sandeep Jha, Adv. of Chhattisgarh. for R-2/State CORAM: HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE VINOD GOEL G.S.SISTANI, J.

1. Present petition has been instituted by the parokar of Sonu Sardar (hereinafter referred to as the „petitioner‟) under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for quashing the orders of the President of India and the Governor of Chhattisgarh rejecting the mercy petition of the petitioner and to commute the death sentence of the petitioner into life imprisonment on account of delay, improper exercise of power and illegal solitary confinement. W.P. (Crl) 441/2015 Page 1 of 95 2. We may note that after this Court had issued notice in the present writ petition on 02.03.2015, the State of Chhattisgarh had preferred a transfer petition [Transfer Petition (Crl.) 297/2016]. before the Supreme Court of India and at the same time, moved an application bearing Crl.M.A. 3651/2015 before this Court for the dismissal of the petition on the ground that this Court lacked territorial jurisdiction to entertain the present petition. By a detailed judgment dated 06.12.2016, this bench had dismissed the application of the State of Chhattisgarh/respondent no.2, which has been reported as Sonu Sardar v. Union of India and Anr., 235 (2016) DLT530 We are informed that the State of Chhattisgarh filed a petition for special leave to appeal [SLP (Crl.) 131/2017]. before the Supreme Court. On 12.01.2017, while hearing the transfer petition, the Supreme Court requested this Court to decide the writ petition on its own merits. In view of the order, the SLP has also been disposed of on 13.01.2017. Thereafter, none of the parties approached this Court seeking an early hearing in the matter; but waited till 16.02.2017, i.e. the date fixed. Since then the matter was heard on a daily basis on 16.02.2017, 20.02.2017, 21.02.2017, 27.02.2017, 28.02.2017, 01.03.2017, 02.03.2017, 06.03.2017 and finally reserved on 09.03.2017.

3. The petitioner is a death-row convict who has been convicted and sentenced to death by the trial court by a judgment dated 27.02.2008. The facts leading to the filing of the present petition are as follows: (i) On 26.11.2004, Shamim Akhtar, a scrap dealer, his driver Asgar Ali, his wife Ruksana Bibi, daughter Rana and son Yakub were at home when five persons came there at about 7.00 p.m. on the W.P. (Crl) 441/2015 Page 2 of 95 pretext of selling scrap. They accosted Shamim Akhtar and demanded money from him by putting a knife to his throat. At that time, Shamim‟s 9 years old daughter Shabana escaped from the back door. She went to Ramlal‟s house and informed him about what was happening in the house. Ramlal attempted to go to Shamim‟s house but Shabana stopped him by saying that he should not go as he too would be assaulted. So, he did nothing for 10 hours. At 5.00 a.m. in the morning, when they went to the house, they found the dead bodies of the aforementioned five persons. The petitioner was arrested on 29.11.2004. (ii) The trial court, vide its order dated 27.02.2008, convicted the petitioner and his co-accused under Section 396 of the Indian Penal Code and finding the crime to be rarest of the rare, sentenced them to death. (iii) Later on, the High Court of Chhattisgarh on 08.03.2010 confirmed the death sentence of the petitioner while declaring the co-accused to be a juvenile and referring his case to the Juvenile Justice Board. (iv) Thereafter, the Supreme Court on 23.02.2012 upheld the death sentence by dismissing the appeal filed by the petitioner [Sonu Sardar v. State of Chhattisgarh, (2012) 4 SCC97. (v) The petitioner submitted a mercy petition dated 20.03.2012, which was rejected by the Governor on 08.04.2013 and by the President on 05.05.2014. (vi) On 24.05.2014, the petitioner through his lawyers wrote a letter to the President of India pointing out that his mercy petition had W.P. (Crl) 441/2015 Page 3 of 95 been dismissed on the basis of his being 23 years of age on the date of offence when, in fact, he was 18 years and 2 months old at that time. In May, 2014, the petitioner filed a review petition before the Supreme Court, inter alia on the same ground. (vii) The petitioner also filed a writ petition before the Supreme Court praying that his death sentence be stayed during the pendency of his review petition and for open hearing of death sentence review petitions. (viii) Thereafter, the review petition of the petitioner was ordered to be listed in open Court. However, the review petition filed by the petitioner was dismissed by a judgment dated 10.02.2014. (ix) On 14.02.2015, the petitioner‟s lawyers by hand delivered a letter to the Jail Superintendent, Central Jail, Raipur advising the prison authorities against initiating black warrant proceedings, as the letter dated 24.05.2014 was still pending before the President of India. (x) The present writ petition has been filed on 26.02.2015.

4. Extensive arguments have been made before us. The arguments of the Dr.Chaudhary, learned counsel for the petitioner, can be summarized in seriatim as under: (i) Delay in adjudication of the mercy petition; (ii) Solitary confinement; and (iii) Improper exercise of power.

5. We deem it appropriate to deal with the contentions under different heads. DELAY W.P. (Crl) 441/2015 Page 4 of 95 6. It is the submission of the learned counsel for the petitioner that the delay of 2 years 2 months in this case was avoidable.

7. Learned counsel contends that the Supreme Court has held that the delay violates fair, just and reasonable procedure and the test is whether the delay was an avoidable delay in the adjudication of a mercy petition. At the same time, he concedes that the delay caused by a prisoner cannot be the basis of commutation, but states that in the present case, neither there is any delay caused by the petitioner nor any delay has been attributed to him.

8. Since the law is no longer res integra as having been considered over a long line of judicial pronouncements since nineteen eighties, we deem it appropriate to trace its development prior to dealing with the contentions of the parties.

9. In the year 1983, the Supreme Court for the first time recognized that additional suffering inflicted on a death-row convict by delayed execution of death sentence was unconstitutional in the case of T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC68 The Division Bench of the Supreme Court held that the delay beyond 2 years in executing death sentence would entitle the convict to commutation to life imprisonment. Relevant paragraphs of the said judgment read as under: In Furman v. State of Georgia [408 US238:

33. L Ed “9. 2d 346 (1972).]. Justice Brennan observed: ―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.‖ In Noel Riley v. Attorney-General [1982 Criminal 10. Law Review 679.]. the majority of the Lords of the Judicial W.P. (Crl) 441/2015 Page 5 of 95 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 [408 US238:

33. L Ed 2d 346 (1972).]. People v. Chessman, People v. Andersen, Ediga Anamma v. State of A.P.[(1974) 4 SCC443:

1974. SCC (Cri) 4

(1974) 3 SCR329 , Rajendra Prasad v.State of U.P. [(1979) 3 SCC646:

1979. SCC (Cri) 749.]. and Tyrer v. United Kingdom, said: from common law principles and ―It is no exaggeration, therefore, to say that the jurisprudence of the civilised world, much of which is derived the prohibition against cruel and unusual punishments 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 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 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 W.P. (Crl) 441/2015 Page 6 of 95 to a cruel and dehumanising been subjected 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 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.‖ 11. While we entirely agree with Lord Scarman and Lord 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, the dehumanising character of the delay. … 16. The question whether a prisoner under a lawful sentence of death or imprisonment could claim Fundamental Rights was considered in Bhuvan Mohan Patnaik v. State of A.P. [1974 SCC (Cri) 8

(1975) 3 SCC185: AIR1974SC2092: (1975) 2 SCR24 Chandrachud, J.

(as he then was) declared: it would not alter ―Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails 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 W.P. (Crl) 441/2015 Page 7 of 95 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 a 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.‖ … 20. 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 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 (vide Strunk v. United States [(1973) 37 L ED2 56.]. ). 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 sentence of the W.P. (Crl) 441/2015 Page 8 of 95 personal liberty except according to procedure established by law. The appropriate relief in such a case is to vacate the sentence of death.‖ 21. …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. 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 sentence of imprisonment for life.” substitute the (Emphasis Supplied) 10. We may add that the underlined observations in paragraph 21 did not find favour with the Apex Court in Smt.Triveniben v. State of Gujarat, (1988) 4 SCC574and were thus, overruled. We shall revert to this aspect later.

11. The jurisprudence was further advanced in the case of Sher Singh & Others v. State of Punjab, (1983) 2 SCC344 wherein a Bench of three Judges held that the clock for computing delay starts from the judgment of the Supreme Court finally confirming the death penalty and the delay occasioned at the instance of the convict himself must be factored out while computing the same. The Court further went on to hold that there cannot be any rule of thumb whereby delay of 2 years would ipso facto commute the punishment to imprisonment for life. Y.V. Chandrachud, C.J.

giving the opinion for the Bench explained the rationale for the same as below: “11. 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 W.P. (Crl) 441/2015 Page 9 of 95 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 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 spectre 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. Traditionally, 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 res judicata 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 to 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 justiciae, 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.” (Emphasis Supplied) W.P. (Crl) 441/2015 Page 10 of 95 12. In respect of delay, the Apex Court held as under: ―16. 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 Article 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 Article 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, Article 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 Prabhakar Pandurang Sangzgiri [State of Maharashtra v. Prabhakar Pandurang Sangzgiri, AIR1966SC424: (1966) 1 SCR702: (1966) 1 SCJ679:

1966. Cri LJ311 , Bhuvan Mohan Patnaik [B. Bhuvan Mohan Patnaik v. State of A.P., (1975) 3 SCC185:

1974. SCC (Cri) 8

AIR1974SC2092: (1975) 2 SCR24 and Sunil Batra [(1978) 4 SCC494:

1979. SCC (Cri) 1

AIR1978SC1675: (1979) 1 SCR392:

1978. Cri LJ1741 ). It is a logical extension of the self-same principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust or unfair. Article 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. W.P. (Crl) 441/2015 Page 11 of 95 two years purports fixed time necessary to have been … 18. What we have said above delineates the broad area of agreement between ourselves and our learned Brethren who decided Vatheeswaran. We must now indicate with precision the narrow area wherein we feel constrained to differ from them and the reasons why. Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed. But, according to us, no hard and fast rule can be laid down as our learned Brethren have done that ―delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence to death to invoke Article 21 and demand the quashing of the sentence of death‖. This period of in Vatheeswaran after making ―all reasonable allowance for the for appeal and consideration of reprieve‖. With great respect, we find it impossible to agree with this part of the judgment. One has only to turn to the statistics of the disposal of cases in the High Court and the Supreme Court to appreciate that a period far exceeding two years is generally taken by those Courts together for the disposal of matters involving even the death sentence. Very often, four or five years elapse between the imposition of death sentence by the Sessions Court and the disposal of the special leave petition or an appeal by the Supreme Court in that matter. This is apart from the time which the President or the Governor, as the case may be, takes to consider petitions filed under Article 72 or Article 161 of the Constitution or the time which the Government takes to dispose of applications filed under Sections 432 and 433 of the Code of Criminal Procedure. It has been the sad experience of this Court that no priority whatsoever is given by the Government of India to the disposal of petitions filed to the President under Article 72 of the Constitution. Frequent reminders are issued by this Court for an expeditious disposal of such petitions but even then the petitions remain undisposed of for a long time. Seeing that the petition for reprieve or commutation is not being W.P. (Crl) 441/2015 Page 12 of 95 attended to and no reason is forthcoming as to why the delay is caused, this Court is driven to commute the death sentence into life imprisonment out of a sheer sense of helplessness and frustration. Therefore, with respect, the fixation of the 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.

19. Apart from the fact that the rule of two years runs in the teeth of common experience as regards the time generally occupied by proceedings in the High Court, the Supreme Court and before the executive authorities, we are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprisonment. There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated. A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid of the sentence of death imposed upon him and indeed, there is no one, be he blind, lame, starving or suffering from a terminal illness, who does not want to live. The Vinoba Bhaves, who undertake the ―Prayopaveshana‖ do not belong to the world of ordinary mortals. Therefore, it is understandable that a convict sentenced to death will take recourse to every remedy which is available to him under the law to ask for the commutation of his sentence, even after the death sentence is finally confirmed by this Court by dismissing his special leave petition or appeal. But, it is, at least, relevant to consider whether the delay in the execution of the death sentence is attributable to the fact that he has resorted to a series of untenable proceedings which have the effect of defeating the ends of justice. It is not uncommon that a series of review petitions and writ petitions are filed in this Court to challenge judgments and orders which have assumed finality, without any seeming justification. Stay orders are obtained in those proceedings and then, at the end of it all, comes the argument that there has been W.P. (Crl) 441/2015 Page 13 of 95 prolonged delay in implementing the judgment or order. We believe that the Court called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it. If this is not done, the law laid down by this Court will become an object of ridicule by permitting a person to defeat it by resorting to frivolous proceedings in order to delay its implementation. And then, the rule of two years will become a handy tool for defeating justice. The death sentence should not, as far as possible, be imposed. But, in that rare and exceptional class of cases wherein that sentence is upheld by this Court, the judgment or order of this Court ought not to be allowed to be defeated by applying any rule of thumb.” (Emphasis Supplied) 13. Even though the Bench held that no rule of thumb can be applied, it impressed upon the Governments to apply a „self-imposed‟ rule of three months. The relevant portion of the judgment is extracted as below: “23. We must take this 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 must be disposed of expeditiously. A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice. Several instances can be cited, to which the record of this Court will bear testimony, in which petitions are pending before the State Governments and the Government of India for an inexplicably long period. The latest instance is to be found in Criminal Writ Petitions Nos. 345-348 of 1983, from which it would appear that petitions W.P. (Crl) 441/2015 Page 14 of 95 filed under Article 161 of the Constitution are pending before the Governor of Jammu & Kashmir for anything between five to eight years. A pernicious impression seems to be growing that whatever the courts may decide, one can always turn to the executive for defeating the verdict of the court by resorting to delaying tactics. Undoubtedly, the executive has the power, in appropriate cases, to act under the aforesaid provisions but, if we may remind, all exercise of power is pre-conditioned by the duty to be fair and quick. Delay defeats justice.” (Emphasis Supplied) 14. As a matter of academic interest, we may notice that the Full Bench had also held that the Court may also look into the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question where the motivation and pattern of the crime are such as are likely to lead to its repetition. This has also been overruled in Smt.Triveniben (Supra).

15. The Supreme Court in the case of K.P. Mohammed v. State of Kerala, 1984 (Supp) SCC684 re-emphasized the importance of the self- imposed rule of discipline that mercy petitions should be disposed of within three months. While coming to the conclusion, the Division Bench took a queue from the law prevailing in cases of election petitions.

16. In Munawar Harun Shah v. State of Maharashtra, (1983) 3 SCC354 the Supreme Court reiterated the principles that lapse of time for which the convict himself was responsible cannot form the basis of commuting the sentence of death. In the case, the petitioners therein had contended that a period of five years had elapsed since the imposition of the death penalty for which their punishment should be W.P. (Crl) 441/2015 Page 15 of 95 commuted. Finding that the delay was caused because of repetitive petitions being filed by the convicts themselves, the Supreme Court dismissed the petitions.

17. However, in a subsequent judgment of a Division Bench of the Supreme Court in the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, (1985) 1 SCC275 the rule of thumb of two years was reiterated leaving a doubt as to whether T.V. Vatheeswaran (Supra), decided by a Division Bench of two Judges, could have been overruled by a Division Bench of three Judges in Sher Singh (Supra) to this extent or not.

18. This controversy was put to rest by a Constitutional Bench of the Supreme Court in the case of Smt.Triveniben (Supra) wherein it was held that no fixed period of delay could make the sentence of death inexecutable and to such extent T.V. Vatheeswaran (Supra) did not lay down the correct position of law. The Constitutional Bench pronounced their reasoned judgment later which has been reported as (1989) 1 SCC678 Though the Bench unanimously held that any rule of thumb of two years could not be laid down; however, were at odds as to whether the nature of the offence and the circumstances surrounding thereto could be taken into consideration. G.L. Oza, J., giving the opinion for the majority, held as under: “16. Even in this Court although there does not appear to be a specific rule but normally these matters are given top priority. Although it was contended that this reference before us — a Bench of five Judges, was listed for hearing after a long interval of time. We do not know why this reference could not be listed except what is generally well known the difficulty of providing a Bench of five Judges but ordinarily it is expected that even in this Court the matters W.P. (Crl) 441/2015 Page 16 of 95 where the capital punishment is involved will be given top priority and shall be heard and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any court before final adjudication even the person who has been condemned or who has been sentenced to death has a ray of hope. It therefore could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the doomsday. The delay therefore which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the Apex Court is pronounced i.e. when the judicial process has come to an end.

17. After the matter is finally decided judicially, it is open to the person to approach the President or the Governor, as the case may be, with a mercy petition. Sometimes person or at his instance or at the instance of some of his relatives, mercy petition and review petitions are filed repeatedly causing undue delay in execution of the sentence. It was therefore contended that when such delay is caused at the instance of the person himself he shall not be entitled to gain any benefit out of such delay. It is no doubt true that sometimes such petitions are filed but a legitimate remedy is available in law, a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that alone will be a matter attracting the jurisdiction of this Court, to consider the question of the execution of the sentence. While considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself however shall not be considered. The only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the executive.

18. So far as the scope of the authority of the President and the Governor while exercising jurisdiction under Article 72 and Article 161 are concerned the question is not at all relevant so far as the case in hand is concerned. But it must be observed that when such petitions under Article 72 or W.P. (Crl) 441/2015 Page 17 of 95 161 are received by the authorities concerned it is expected that these petitions shall be disposed of expeditiously. … 22. It was contended that the delay in execution of the sentence will entitle a prisoner to approach this Court as his right under Article 21 is being infringed. It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra [AIR1967SC1: (1966) 3 SCR744 and also in A.R. Antulay v. R.S. Nayak [(1988) 2 SCC602:

1988. SCC (Cri) 372]. , 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 Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper..................” (Emphasis Supplied) 19. In his separate but concurring opinion, K. Jagannatha Shetty, J., observed as under: “72. If the delay in passing the sentence cannot render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional. Much less any fixed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fix any period of limitation for execution on the ground that it would be a W.P. (Crl) 441/2015 Page 18 of 95 denial of fairness in procedure under Article 21. With respect, I am unable to agree with the view taken in Vatheeswaran case [(1983) 2 SCC68:

1983. SCC (Cri) 3

(1983) 2 SCR348 on this aspect. … 74. It is, however, necessary to point out that Article 21 is relevant at all stages. This Court has emphasised that ―the speedy trial in criminal cases though not a specific fundamental right, is implicit in the broad sweep and content of Article 21‖ [ See Hussainara Khatoon v. State of Bihar, (1980) 1 SCC81:

1980. SCC (Cri)

(1979) 3 SCR169 . Speedy trial is a part of one's fundamental right to life and liberty [ See Kadra Pahadiya v. State of Bihar, (1981) 3 SCC671:

1981. SCC (Cri) 791 and (1983) 2 SCC104:

1983. SCC (Cri) 361]. . This principle, in my opinion, is no less important for disposal of mercy petition. 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. He may be provided with amenities of ordinary inmates in the prison as stated in Sunil Batra v. Delhi Admn. [(1978) 4 SCC494:

1979. SCC (Cri) 1

(1979) 1 SCR392 , but nobody could succeed in giving him peace of mind. Chita Chinta Dwayoormadhya, Chinta Tatra Gariyasi, Chita Dahati Nirjivam, Chinta Dahati Sajeevakam.

75. As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one. This mental torment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there is every reason for him to hope for acquittal. That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned prisoner is W.P. (Crl) 441/2015 Page 19 of 95 entitled to come to the court requesting to examine whether it is just and fair to allow the sentence of death to be executed.

76. What should be done by the court is the next point for consideration. It is necessary to emphasise that the jurisdiction of the court at this stage is extremely limited. If the court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. 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 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 Article 226 or under Article 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 execution unconstitutional.…” into account cannot render itself the time utilised in the by the 20. The Bench differed on the question as to whether the offence and the circumstances related thereto could be taken into consideration. The (Emphasis Supplied) relevant portions are under: Majority view: “22. …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 W.P. (Crl) 441/2015 Page 20 of 95 considered for coming to the conclusion whether the sentence could be altered on that ground also.” Minority View: “76. …Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself. …” 21. In Madhu Mehta v. Union of India and others, (1989) 4 SCC62 the Supreme Court after considering that a delay of more than 8 years in disposal of mercy petition under Articles 161 and 72 had taken place commuted death penalty to one of life.

22. By this time, it was well-settled that delay caused by the convict himself would not render the sentence of death inexecutable. [See Jumman Khan v. State of U.P. and Another, (1991) 1 SCC752(paragraphs 5 & 20)].

23. One of the convicts who had previously been denied relief in Smt.Triveniben (Supra) again approached the Supreme Court in Daya Singh v. Union of India and Others, (1991) 3 SCC61contending that there had been delay in the execution of his sentence after the judgment in Smt.Triveniben (Supra). The convict had preferred a second mercy petition, which was not processed for two years, as the Governor had made a reference to the President of India raising certain queries. The reference remained under consideration and was answered only after considerable delay. The Court found that there was no reasonable explanation to the delay and that the convict was in no way responsible for it. Ultimately, the petition was allowed considering the cumulative effect of all the circumstances of the case. The relevant portion of the judgment reads as under:-

"W.P. (Crl) 441/2015 Page 21 of 95 As was cautioned by “7. …The affidavit, however, does not furnish any fact or circumstance in justification of the delay. In absence of any reasonable explanation by the respondents we are of the view that if the concerned officers had bestowed the necessary attention to the matter and devoted the time its urgency needed, we have no doubt that the entire process of consideration of the questions referred would have been completed within a reasonable period without leaving any yawning gap rightly described by the learned Additional Solicitor General as ―embarrassing gap‖. There has, thus, been an avoidable delay, which is considerable in the totality of circumstances in the present case, for which the condemned prisoner is in no way responsible. in Triveniben 8. this Court case [(1989) 1 SCC678:

1989. SCC (Cri) 248]. we are not laying down any rule of general application that the delay of two years will entitle a convict, sentenced to death, to conversion of his sentence into one for life imprisonment, rather we have taken into account the cumulative effect of all the circumstances of the case for considering the prayer of the petitioner. Although the fact that the petitioner has been continuously detained in prison since 1972 was taken into account while rejecting his earlier writ petition, the same is not rendered completely irrelevant for the purpose of the present case and we have taken it into consideration merely as a circumstance assuming significance as a result of the relevant circumstances arising subsequent to the judgment rendered in October 1988.‖ (Emphasis Supplied) 24. The law, at this stage, remained stagnant for and thus, we may fast forward ahead about 20 years. The convict in Devender Pal Singh Bhullar v. State (NCT of Delhi), (2013) 6 SCC195 had been convicted under Sections 419, 420, 468 and 471 of the Indian Penal Code, Section 12 of the Passports Act and Sections 2, 3 & 4 of Terrorist and Disruptive Activities (Prevention) Act. He had W.P. (Crl) 441/2015 Page 22 of 95 approached the Supreme Court seeking commutation of his penalty on the ground of inordinate delay. Having regard to the gravity of the crime and relying upon the dissenting opinion (to its limited extent) of K. Jagannatha Shetty, J.

in Smt.Triveniben (Supra), the Court held that delay cannot be a ground of commutation in cases where a person is convicted for offence under TADA or similar statutes. Relevant portion of the judgment reads as under:-

":

1983. SCC “66. Though the argument appears attractive, on a deeper consideration of all the facts, we are convinced that the present case is not a fit one for exercise of the power of judicial review for quashing the decision taken by the President not to commute the sentence of death imposed on the petitioner. Time and again (Machhi Singh case[(1983) 3 SCC470(Cri) 681]., Ediga Anamma case [Ediga Anamma v.State of A.P., (1974) 4 SCC443:

1974. SCC (Cri) 479]. , Sher Singh case [(1983) 2 SCC344:

1983. SCC (Cri) 461]. and Triveniben case [(1989) 1 SCC678:

1989. SCC (Cri) 248]. ), it has been held that while imposing punishment for murder and similar type of offences, the Court is not only entitled, but is duty-bound to take into consideration the nature of the crime, the motive for commission of the crime, the magnitude of the crime and its impact on the society, the nature of weapon used for commission of the crime, etc. … All these factors have to be taken into consideration by the President or the Governor, as the case may be, while deciding a petition filed under Article 72 or 161 of the Constitution and the exercise of power by the President or the Governor, as the case may be, not to entertain the prayer for mercy in such cases cannot be characterised as arbitrary or unreasonable and the Court cannot exercise power of judicial review only on the ground of undue delay.

67. We are also of the view that the rule enunciated in Sher Singh case, Triveniben case and some other judgments that long delay may be one of the grounds for W.P. (Crl) 441/2015 Page 23 of 95 commutation of the sentence of death into life imprisonment cannot be invoked in cases where a person is convicted for offence under TADA or similar statutes. Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes. The seriousness of the crimes committed by the terrorists can be gauged from the fact that many hundred innocent civilians and men in uniform have lost their lives. At times, their objective is to annihilate their rivals including the political opponents. They use bullets, bombs and other weapons of mass killing for achieving their perverted political and other goals or wage war against the State. While doing so, they do not show any respect for human lives. Before killing the victims, they do not think even for a second about the parents, wives, children and other near and dear ones of the victims. The families of those killed suffer the agony for their entire life, apart from financial and other losses. It is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of the petition filed under Article 72 or 161 of the Constitution as a ground for commutation of the sentence of death. Many others join the bandwagon to espouse the cause of terrorists involved in gruesome killing and mass murder of innocent civilians and raise the bogey of human rights.” (Emphasis Supplied) 25. In a short span of time, the very same Bench of the Supreme Court in Mahendra Nath Das v. Union of India and others, (2013) 6 SCC253finding unexplained chunks of delay cumulating to 12 years between the making of the mercy petition under Article 72 and rejection thereof and the fact that the note of the predecessor of the President was not put up by the Ministry of Home Affairs, commuted the sentence of death into one of life. W.P. (Crl) 441/2015 Page 24 of 95 26. Thereafter, a Full Bench of the Apex Court in Shatrughan Chauhan & Another v. Union of India and Others, (2014) 3 SCC1 has summarized the law in respect of mercy petitions under Articles 72 and 161 of the Constitution of India. In respect of delay in deciding petitions, P. Sathasivam, C.J., giving the opinion for the Bench, observed as under: “44. In view of the above, we hold that undue long delay in execution of sentence of death will entitle the condemned prisoner to approach this Court under Article 32. However, this Court will only examine the circumstances surrounding the delay that has occurred and those that have ensued after the sentence was finally confirmed by the judicial process. This Court cannot reopen the conclusion already reached but may consider the question of inordinate delay to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. … 47. It is clear that after the completion of the judicial process, if the convict files a mercy petition to the Governor/President, it is incumbent on the authorities to dispose of the same expeditiously. Though no time-limit can be fixed for the Governor and the President, it is the duty of the executive to expedite the matter at every stage viz. calling for the records, orders and documents filed in the court, preparation of the note for approval of the Minister concerned, and the ultimate decision of the constitutional authorities. This Court, in Triveniben, further held that in doing so, if it is established that there was prolonged delay in the execution of death sentence, it is an important and relevant consideration for determining whether the sentence should be allowed to be executed or not.

48. Accordingly, if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 W.P. (Crl) 441/2015 Page 25 of 95 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone however, only after satisfying that the delay was not caused at the instance of the accused himself. To this extent, the jurisprudence has developed in the light of the mandate given in our Constitution as well as various Universal Declarations and directions issued by the United Nations. … 64. From the analysis of the arguments of both the counsel, we are of the view that only delay which could not have been avoided even if the matter was proceeded with a sense of urgency or was caused in essential preparations for execution of sentence may be the relevant factors under such petitions in Article 32. Considerations such as the gravity of the crime, extraordinary cruelty involved therein or some horrible consequences for society caused by the offence are not relevant after the Constitution Bench ruled in Bachan Singh v. State of Punjab [Bachan Singh v. State of Punjab, (1980) 2 SCC684:

1980. SCC (Cri) 580]. that the sentence of death can only be imposed in the rarest of rare cases. Meaning, of course, all death sentences imposed are impliedly the most heinous and barbaric and rarest of its kind. The legal effect of the extraordinary depravity of the offence exhausts itself when court sentences the person to death for that offence. Law does not prescribe an additional period of imprisonment in addition to the sentence of death for any such exceptional depravity involved in the offence. … 70. The same view was once again reiterated by all the Judges and the very same reasonings have been reiterated in para 23 of the order dated 7-2-1989. In such circumstances and also in view of the categorical opinion of Oza, J.

in para 22 of the judgment in Triveniben that: ―22. … it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict …. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court….‖ W.P. (Crl) 441/2015 Page 26 of 95 (emphasis supplied) it cannot be held, as urged, on behalf of the Union of India that the majority opinion in Triveniben is to the effect that delay is only one of the circumstances that may be considered along with ―other circumstances of the case‖ to determine as to whether the death sentence should be commuted to one of life imprisonment. We are, therefore, of the view that the opinion rendered by Shetty, J.

as quoted in para 76 of the judgment in Triveniben is a minority view and not a view consistent with what has been contended to be the majority opinion. We reiterate that as per the majority view, if there is undue long delay in execution of sentence of death, the condemned prisoner is entitled to approach this Court under Article 32 and the Court is bound to examine the nature of delay caused and circumstances that ensued after the sentence was finally confirmed by the judicial process and to take a decision whether execution of sentence should be carried out or should be altered into imprisonment for life. It is, however, true that the majority of the Judges have not approved the fixed period of two years enunciated that extent overruled the same. … 78. Taking guidance from the above principles and in the light of the ratio enunciated in Triveniben, we are of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases including the offences under TADA. The only aspect the courts have to satisfy is that the delay must be unreasonable and unexplained or inordinate at the hands of the executive. The argument of Mr Luthra, learned ASG that a distinction can be drawn between IPC and non-IPC offences since the nature of the offence is a relevant factor is liable to be rejected at the outset. In view of our conclusion, we are unable to share the views expressed in Devender Pal Singh Bhullar.” in Vatheeswaran and only to (Emphasis Supplied) W.P. (Crl) 441/2015 Page 27 of 95 27. Both the review petitions and the curative petitions filed by the Government against the judgment have been dismissed. From the aforegoing, it is clear that the delay in execution of death penalty may render the sentence inexecutable only if the delay is: (i) (ii) unreasonable and unexplained, or inordinate on the part of the executive; and (iii) should not have been occasioned due to the convict himself.

28. At the same time, the Supreme Court held that the judgment in Devender Pal Singh Bhullar (Supra) is per incuriam inasmuch as the Courts are not justified in looking into the gravity and the nature of the offence at this stage.

29. Soon thereafter, the true import of the judgment in Shatrughan Chauhan (Supra) was questioned in V. Sriharan alias Murugan v. Union of India and others, (2014) 4 SCC242 where one of the contentions raised by the Union was that the petitioners therein had failed to show any suffering or ill-effects from the delay in deciding the mercy petition and thus, were not entitled to any relief. The very same Bench as in Shatrughan Chauhan (Supra) rejected the argument as the same would be a misinterpretation of their previous judgment. Relevant portion reads as under: “21. Thus, the argument that the petitioners are under a legal obligation to produce evidence of their sufferings and harm caused to them on account of prolonged delay is unknown to law and will be misinterpretation of Shatrughan Chauhan. Such a prerequisite would render the fundamental rights guaranteed under Part III of the Constitution beyond the reach of death-row convicts and will make them nugatory and inaccessible for all intent and purposes. Besides, there is no requirement in Indian law as well as in W.P. (Crl) 441/2015 Page 28 of 95 international judgments for a death-row convict to prove actual harm occasioned by the delay. There is no obligation on the convict to demonstrate specific ill effects of suffering and agony on his mind and body as a prerequisite for commutation of sentence of death.” (Emphasis Supplied) 30. Thus, the condemned prisoner need not show any scars for agitating the ground of delay as delay itself violates the procedural due process guaranteed under Article 21.

31. We may also note that the Courts have generally not taken delay as a factor in isolation but considered the cumulative effect of the supervening circumstances. In Navneet Kaur v. State (NCT of Delhi) and Another, (2014) 7 SCC264 the wife of Devender Pal Singh Bhullar had once again approached the Supreme Court by filing a curative petition, inter alia, alleging that the previous judgment which had sealed the fate of her husband had been declared per incuriam. The Apex Court after taking into account the cumulative effect of the unexplained/inordinate delay of 8 years and the ground of insanity allowed the petition and commuted the sentence to one of life imprisonment.

32. Similarly, in Ajay Kumar Pal v. Union of India and Another¸ (2015) 2 SCC478 a Full Bench of the Supreme Court held that the cumulative effect (described as the „combined effect‟) of inordinate delay of a period of 3 years and 10 months coupled with the fact that the petitioner had been in solitary confinement since the day he was awarded death sentence, violated Article 21 and thus, warranted a commutation of the sentence of the petitioner. W.P. (Crl) 441/2015 Page 29 of 95 33. During the course of the arguments, our attention was also diverted to a recent judgment of the Allahabad High Court in Peoples’ Union for Democratic Rights (PUDR) v. Union of India & Ors., (2015) 5 All LJ178:

2015. Cri LJ4141 where it has been held as under: “12. …The test of delay in the execution of the sentence of death which has been evolved in India over the last three decades is an objective test. The test requires the court to determine whether a delay which has occurred in the execution of the death sentence after the judgment of conviction had attained finality had been avoidable or unnecessary. Requiring the court to scrutinize the reasons for the delay imparts a measure of objectivity to the process since there can be no greater anathema to the law than a subjective application of norms and standards in the execution of the death penalty. As an intrinsic part of this doctrine, which is a now settled part of our law, the true test is not whether the delay has crossed a particular threshold of time. The quantum test is not accepted as a part of constitutional doctrine in India. Hence, the execution of the sentence of death cannot be regarded as being unconstitutional because the passage of a particular period of time is regarded improper. The true test or enquiry is not about a particular quantum of time but whether the delay is such as should be regarded as being avoidable, unnecessary and, therefore, prolonged. As an integral part of this doctrine, the court which is exercising its power of judicial review has to consider whether the convict is responsible for the delay which has taken place. A convict may adopt, as experience shows, strategies to delay the execution of the death sentence including the filing of successive review petitions. As a principle of law, a convict is not entitled to the benefit of a delay which has been caused by their own conduct. Hence, when the execution of the sentence of death has been stayed during the course of proceedings for review, after the court of competent jurisdiction, the period of stay that has elapsed in the disposal of the review petition would not enure to the benefit judgment of the final W.P. (Crl) 441/2015 Page 30 of 95 of the convict. The significant point to note is that there is no thumb rule of a particular quantum of delay or a particular period being regarded as a justification for granting mercy. It is not the quantum of delay but the reason for delay which assumes significance.” (Emphasis Supplied) 34. It may be noted that the Ministry of Home Affairs, Government of India has issued instructions to emphasize the need of expediting of the process. The Ministry of Home Affairs has released „Instructions regarding Procedure to be Observed by the States for Dealing with Petitions for Mercy from or on behalf of Convicts under Sentence of Death and with Appeals to the Supreme Court and Applications for Special Leave to Appeal to that Court by such Convicts‟. As per the Rules, the requirement of alarcity is at every stage of the process. The convict is allowed only 7 days to make a mercy petition and the same would also make it incumbent upon the Government to show the same urgency. We deem it appropriate to reproduce relevant rules: “V. In all cases in which a petition for mercy from a convict under sentence of death is to be forwarded to the Secretary to the Government of India, Ministry of Home Affairs, the Lieut. Governor/ Chief Commissioner/ Administrator or the Government of the State concerned, as the case may be, shall forward such petition as expeditiously as possible along with the records of the case and his or its observations in respect of any of the grounds urged in the petition. In the case of States, the Government of the State concerned shall, if it had previously rejected any petition addressed to itself or the Governor/Sadar-i-Riyasat, also forward a brief statement of the reasons for the rejection of the previous petition or petitions. VI. Upon the receipt of the orders of the President, an acknowledgement shall be sent to the Secretary to the Government of India, Ministry of Home Affairs, immediately W.P. (Crl) 441/2015 Page 31 of 95 in the manner hereinafter provided. In the case of Assam and the Andaman and Nicobar Islands, all orders will be communicated by telegram and the receipt thereof shall be acknowledged by telegram. In the case of other States and Union Territories, if the petition is rejected, the orders will be communicated by express letter and receipt thereof shall be acknowledged by express letter. Orders commuting the death sentence will be communicated by express letter in the case of Delhi and by telegram in all other cases and receipt thereof, shall be acknowledged by express letter or telegram, as the case may be.” (Emphasis Supplied) 35. From the Rules, it is clear that the executive is to show urgency at all stages of processing a mercy petition. As per Rule V, the Lieutenant Governor/Chief Commissioner/Administrator or the Government of the State concerned is to forward such petition „as expeditiously as possible‟. All communications are also to be made by telegram or by an express letter in order to minimize the time taken. This aspect was also considered by the Full Bench of the Supreme Court in Shatrughan Chauhan (Supra) as under: “100. The above Rules make it clear that at every stage the matter has to be expedited and there cannot be any delay at the instance of the officers, particularly, the Superintendent of Jail, in view of the language used therein as ―at once‖.

101. Apart from the above Rules regarding presentation of mercy petitions and disposal thereof, necessary instructions have been issued for preparation of note to be approved by the Home Minister and for passing appropriate orders by the President of India.

102. The extracts from the Prison Manuals of various States applicable for the disposal of mercy petitions have been placed before us. Every State has a separate Prison Manual which speaks about detailed procedure, receipt placing required materials for approval of the Home Minister and W.P. (Crl) 441/2015 Page 32 of 95 the President for taking decision expeditiously. The Rules also provide steps to be taken by the Superintendent of Jail after the receipt of mercy petition and subsequent action after disposal of the same by the President of India. Almost all the Rules prescribe how the death convicts are to be treated till final decision is taken by the President of India.

103. The elaborate procedure clearly shows that even death convicts have to be treated fairly in the light of Article 21 of the Constitution of India. Nevertheless, it is the claim of all the petitioners herein that all these rules were not adhered to strictly and that is the primary reason for the inordinate delay in disposal of mercy petitions. For illustration, on receipt of mercy petition, the Department concerned has to call for all the records/materials connected with the conviction. Calling for piecemeal records instead of all the materials connected with the conviction should be deprecated. When the matter is placed before the President, it is incumbent on the part of the Home Ministry to place all the materials such as judgment of the trial court, High Court and the final court viz. Supreme Court as well as any other relevant material connected with the conviction at once and not call for the documents in piecemeal.” (Emphasis Supplied) 36. Thus, there can be no doubt that it is incumbent upon the execut ive to expedite the process at every stage.

37. During the course of arguments, Dr.Chaudhary had tried to impress upon this Bench that the self-imposed rule of three months as propounded in Sher Singh (Supra) and K.P. Mohammed (Supra) is very much alive and once the delay crosses the threshold, the onus shifts upon the executive to explain the delay. We are unable to accept the same as it would once again amount to fixing a thumb rule as to what is the reasonable time in which the mercy petition should be decided. According to us, it would remain incumbent upon the W.P. (Crl) 441/2015 Page 33 of 95 petitioner to show that there was a delay and that the same was avoidable or inordinate.

38. As put so eloquently by K. Jagannatha Shetty, J.: “As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one.” Once the sentence of death has been confirmed the final judicial forum, any hope of acquittal which might be lingering on in the mind of the condemned prisoner is foreclosed and the spectre of death starts looming upon him. One never knows when he might be called upon to answer the call of the hangman. This uncertainty, i.e. the doubt of a tomorrow, is what burns the living body. It is a form of additional torment not mandated by law, i.e. not part of the sentence awarded to the convict and hence, it violates the Constitutional Protections. This delay inserts a dehumanising factor in the execution of the sentence of death inasmuch it deprives one of his life in an unjust, unfair and unreasonable way running awry of the due process of law enshrined in Article 21 of the Constitution.

39. By now the law is well-settled that delay ipso facto will not render the sentence of death inexecutable warranting commutation of the penalty of the convict to one of life imprisonment. The principles to be adhered to by the Courts can be summarized as under: (i) The delay must be unreasonable and unexplained or must be inordinate; (ii) The delay attributable to the convict himself should be factored out as then any suffering was called upon by the convict himself; W.P. (Crl) 441/2015 Page 34 of 95 (iii) The clock starts ticking from the confirmation of the death penalty by the Supreme Court and stops at the „nay‟ of the President; (iv) There cannot be any rule of thumb as to what amounts to inordinate delay in deciding the mercy petition and the same shall depend upon the facts of each case; (v) It is not incumbent upon the convict to show scars, i.e. the suffering in such delay is inherent and the condemned need not show any actual torment or misery; (vi) The nature of the offence, gravity of the crime and circumstances attendant thereto are irrelevant as all the cases have already been found and confirmed to be „rarest of rare‟ by numerous judicial forums and consequently, are bound to prick the judicial mind; but the insertion of any new category, the „rarest of the rarest of rare‟ if it may, is neither allowed by the English language nor law; and (vii) The Courts have frequently refused to judge delay in isolation, but with other supervening circumstances, looking into the „cumulative‟ or „combined‟ effect.

40. We proceed to analyse the case of the petitioner on the touchstone of the aforegoing principles.

41. Both the Union of India/respondent no.1 and the State of Chhattisgarh have filed detailed replies and have also handed over the original record in Court. Upon an analysis of the same, the following timeline would emerge: Date Particulars W.P. (Crl) 441/2015 Page 35 of 95 Date 23.02.2012 20.03.2012 22.03.2012 09.04.2012 16.04.2012 Particulars The Supreme Court upholds the death sentence of the petitioner. The petitioner submits his mercy petition to the Jail Superintendent, Central Jail, Raipur. The Jail Superintendent seeks inputs from various State functionaries :  District Magistrate, Shahdol, Madhya Pradesh (address given by the petitioner in the mercy petition);  Private Secretary to the President of India;  Principal Secretary – Home(Jail), Mantralaya, Raipur;  ADG – Jail, Raipur;  District Magistrate, Koriya, Baikunthpur; and  District Magistrate, Raipur in the request to is received the President‟s Mercy petition Secretariat. The Ministry of Home Affairs, Government of India forwarded the Government of Chhattisgarh for placing it before the Governor for his consideration under Article 161 of the Constitution and in the event of rejection by the Governor, place the matter before the President with the requisite documents and other details. 20.04.2012 26.04.2012 30.04.2012 Superintendent of Police, Shahdol, M.P. sends his inputs to the Collector, Shahdol. the Jail District Magistrate, Shahdol Superintendent, Raipur that the petitioner is a resident of District Anuppur and therefore, inputs should be sought from District Magistrate, Anuppur. The letter dated 26.04.2012 is received in the Office of Jail Superintendent, Raipur. informs W.P. (Crl) 441/2015 Page 36 of 95 Date Particulars 31.05.2012 02.06.2012 04.06.2012 05.06.2012 27.07.2012 30.07.2012 22.08.2012 27.08.2012 31.08.2012 23.11.2012 04.12.2012 The Jail Superintendent seeks inputs from District Magistrate, Anuppur. The SDM, District Anuppur seeks inputs from the Superintendent of Police, Anuppur. The SHO, P.S. Baikunthpur send his inputs in the negative to the Superintendent of Police, Koriya. Superintendent of Police, Anuppur seeks inputs from SHO, P.S. Chachai, District Anuppur. The Superintendent of Police, Koriya sends his inputs for rejection of mercy petition to the Additional Collector, Koriya, Baikunthpur. The SHO, P.S. Chachai, Anuppur sends his inputs to the District Magistrate, Anuppur. The Superintendent of Police, Anuppur sends his inputs to the District Magistrate, Anuppur. the Jail District Magistrate Anuppur informs Superintendent, Central Jail, Raipur that the family of the petitioner has shifted from Anuppur to Chirimiri, District Koriya and therefore, is unable to give any input. The letter dated 22.08.2012 is received in the Office of the Jail Superintendent, Raipur. The Office of Jail Superintendent seeks inputs from District Magistrate, Koriya, Baikunthpur. The District Magistrate, Koriya, Baikunthpur sends his inputs for rejection of mercy petition which is received in the Office of Jail Superintendent on 01.12.2012. The Superintendent, Central Jail, Raipur sends the inputs received from District Magistrate Koriya to the Jail and Reformative Services, headquarters, Raipur, Chhattisgarh; President of India‟ Principal Secretary – Home (Jail), Mantralaya, Raipur; ADG – W.P. (Crl) 441/2015 Page 37 of 95 Date Particulars Jail, Raipur, District Magistrate – Koriya, Baikunthpur; and District Magistrate, Raipur. The letter recommends the pre-mature release of the petitioner. The Office of Jail and Reformative Services Headquarters, Raipur forwards the copy of mercy petition along with other documents to the Principal Secretary – Home(Jail) for further proceedings. Noting that all the inputs have been received and that both the Superintendent of Police and the District Magistrate have advised against the mercy petition. Note is prepared recommending that the petition should be rejected. The Ministry of Home Affairs, Government of India sends a reminder to the State of Chhattisgarh. Note is placed for presenting to the Governor The Note is approved by the Chief Minister of Chhattisgarh As per the Affidavit of the respondent no.1/Union of India: The Governor rejected the mercy petition. The Governor rejects the plea of the petitioner, holding that he is not entitled to pre-mature release. The Under Secretary – Home (Jail), Government of Chhattisgarh seeks the required information as demanded by the Ministry of Home Affairs from the Office of Jail & Reformative Services, Raipur the Principal Secretary – Home The Jail & Reformative Services sends its response to (Jail), Government of Chhattisgarh As per the Affidavit of the respondent no.2/State of Chhattisgarh: The Governor rejects the mercy 13.12.2012 19.12.2012 20.02.2013 20.03.2013 01.04.2013 02.04.2013 08.04.2013 08.04.2013 17.04.2013 26.04.2013 10.05.2013 W.P. (Crl) 441/2015 Page 38 of 95 Date 10.05.2013 27.05.2013 31.07.2013 30.08.2013 04.09.2013 05.09.2013 Particulars petition in exercise of the powers under Article 161 of the Constitution. The Under Secretary – Home (Jail), Government of Chhattisgarh the Office of Jail & Reformative Services, Raipur that the mercy petition has been rejected by the Governor informs UNION OF INDIA Letter sent by the State of Chhattisgarh to the Ministry of Home Affairs, Government of India intimating that the mercy petition has been rejected by the Governor Noting made in file for expediting proceedings. A brief was prepared and the file was submitted and certain queries were raised The queries are answered It was noted that 3 other accused were still absconding and accordingly, it was decided to call for the present status of theses absconding accused from the State Government along with copies of the Trial Court Records („TCR‟) and the Police Diary. 10.09.2013 (Date of issuance: Status of absconding Records and Police Diary were called for. individuals, Trial Court 11.09.2013) 22.10.2013 (Date of issuance) January, 2014 04.02.2014 Reminder sent to the State Government The State of Chhattisgarh provided the information pertaining to the absconding accused, but failed to furnish the trial court proceedings and the police diary. File was put up for directions as to whether the file W.P. (Crl) 441/2015 Page 39 of 95 Date Particulars 05.02.2014 06.02.2014 07.02.2014 (Date of Issuance) 12.02.2014 19.02.2014 19.02.2014 20.02.2014 24.02.2014 25.02.2014 04.03.2014 may be processed without further waiting for the TCR and Police Diary Suggestion made that a reminder may be issued to the State of Chhattisgarh to supply the TCR and the Police Diary within 14 days and if no information is received within a month, the Ministry would process the case. Draft Letter was placed for consideration The reminder was sent by the Ministry of Home Affairs The reminder is received by the Government of Chhattisgarh Along with the noting that the that a reminder has been sent to the State Government, the file was put up for further directions by the Ministry of Home Affairs, Government of India The Under Secretary – Home (Jail), Govt. of Chhattisgarh issues a Letter to the Superintendent of Police, Koriya to provide the necessary documents as detailed in Letter dated 10.09.2013 Decision is taken that the mercy petition may be finally processed for submission to the President for consideration Note was finalized and put up Recommendation for rejection of mercy petition by the Joint Secretary, Ministry of Home Affairs The Under Secretary – Home (Jail), Govt. of Chhattisgarh sends a reminder to the Superintendent of Police, Koriya directing that the documents necessarily be sent within 3 days. 10.03.2014 18.03.2014 and Summary placed in file for consideration Fair copy of the Summary finalized and submitted W.P. (Crl) 441/2015 Page 40 of 95 Date 24.03.2014 19.03.2014 26.03.2014 02.04.2014 22.04.2014 05.05.2014 07.05.2014 08.05.2014 13.05.2014 20.05.2014 22.05.2014 Particulars for approval to the Home Minister Another reminder issued by the Under Secretary – Home (Jail), Govt. of Chhattisgarh sends another reminder to the Superintendent of Police, Koriya to send the documents immediately. Home Minister approved recommended the rejection of the petition the Summary and The Under Secretary – Home (Jail), Govt. of Chhattisgarh again directs the necessary documents be sent within 3 days. that (Jail) Department, Government Another reminder issued by the OSD/Secretary, Home of Chhattisgarh Mercy petition is rejected by the President of India The Superintendent of Police, Koriya sends the documents to the OSD/Secretary, Home (Jail) Department, State of Chhattisgarh Letter is issued to the Secretary – Home, Jail Department, Government of Chhattisgarh that the mercy petition has been rejected. The letter of rejection sent by the Union Government is received by the Government of Chhattisgarh Letter issued by the Under Secretary – Home, Jail Department, Government of Chhattisgarh to the Jail and Reformative Services directing that the rejection of the mercy petition may be intimated. The petitioner is informed of the rejection of his mercy petition. Facts in italics have been extracted from the official records handed over in Court on 09.03.2017. Submissions in respect of Delay W.P. (Crl) 441/2015 Page 41 of 95 42. Dr.Chaudhary has submitted that the whole process has taken 792 days and all the while, the spectre of death was looming on the head of the petitioner. Learned counsel has sought to identify major chunks of unexplained delay in deciding the mercy petition of the petitioner.

43. We may note at this juncture that Dr.Chaudhary has contended that the whole process of collecting inputs from various state authorities was futile as the same were processed under the wrong rule, which did not apply to prisoners on death-row. Thus, the entire time taken to seek inputs should be counted towards the delay in deciding the mercy petition. Whether the rule which was applied was correct or not has been dealt with at a later stage.

44. Learned Counsel for the petitioner has alleged that the first chunk of unexplained delay is of 8 months between 22.03.2013 when the Jail Superintendent had sought inputs from various State functionaries and 23.11.2012, i.e. when the District Magistrate, Koriya had sent his input for denying the release of the petitioner. It is submitted that the though the report of the SHO, P.S. Baikunthpur is dated 02.06.2012, it took the District Magistrate more than five and a half months in acting upon the report. It is submitted by learned counsel that this delay was avoidable.

45. The next period of unexplained delay is between 13.12.2012 and 08.04.2012 between the forwarding of the mercy petition along with all the inputs and the ultimate rejection of the petition by the Governor. We need not divulge in this period in detail as after examining the original records, it is clear that the petition was being processed during this period. W.P. (Crl) 441/2015 Page 42 of 95 46. Dr.Chaudhary has contended that the State Government failed to communicate the rejection of the mercy petition to the respondent no.1 for more than 1 month. He submits that while the mercy petition was rejected on 08.04.2013, it was intimated to the Government of India on 27.05.2013, thereby causing a delay of about 1 and a half month.

47. The next period of delay is between 27.05.2013 and 31.07.2013, when the file was lying in cold storage with the Government of India.

48. It is contended that the final period of delay for which there is no explanation is the period between 10.09.2013 and 20.02.2014, which was wasted in seeking the documents from the State Government despite four reminders of the Government of India.

49. Mr.Chawla, counsel for the respondent no.1/Union of India, submits that most of the alleged delay is attributable to the respondent no.2 and not the Union of India. He submits that, as per the rules, the mercy petition is to be sent to the State Government in the first instance for placing it before the Governor under Article 161 of the Constitution. It is only upon its rejection by the Governor that the matter is to be processed for consideration of the President.

50. Learned counsel for the Union of India submits that the only delay attributable to the respondent no.1 is between 27.05.2013 and 31.07.2013 wherein the file was not being processed. He submits that though the letter of the State Government was dispatched on 27.05.2013, it was actually received by the respondent no.1 on 06.06.2013. This fact has been omitted in the affidavit on behalf of the Union of India though borne out from the record. Thus, the only delay attributable to the respondent no.1 is of 1 month 20 days; W.P. (Crl) 441/2015 Page 43 of 95 otherwise the file has been processed expediently and the total time taken was in 11 months.

51. It is next contended by the learned counsel for the respondent no.1 that it is not delay per se which renders the death sentence inexecutable, but inordinate, undue and unreasonable delay which may entitle a convict on death row to commutation. Therefore, time of 11 months taken by the Union of India cannot be said to be either inordinate or undue.

52. During the course of arguments, it was also contended that the gravity of the offence must be considered as well as the convict must show that the delay occasioned suffering. Both these arguments have been rejected by the Supreme Court and also dealt by us in the aforegoing paragraphs and thus, are rejected at the threshold. Neither the gravity of the offence can be looked into nor is it incumbent upon the convict to show suffering.

53. Learned counsel for the respondent no.2 has also argued on similar lines. He contends that the law is well settled; there cannot be any hard and fast rule as to the time period in which the mercy petition is to be decided. He submits that the petitioner has failed to show any prejudice owing to the delay.

54. In respect of inputs being futile, Mr.Jha submits that all the inputs were necessary to ensure that the right person was being sent to the gallows. The authorities were merely following the procedure while seeking information. He submits that inputs were sought from the District Magistrate, Shahdole as the petitioner was a resident of W.P. (Crl) 441/2015 Page 44 of 95 Shahdole and it was only later learnt that the convict was a resident of Anuppur.

55. Mr.Jha concludes that the file of the petitioner was all along being processed and there cannot be said to be any period of unexplained delay. As an alternative argument, it is submitted that the total time taken by the respondent no.2 in deciding the mercy petition was 1 year 2 months, which cannot be said to be inordinate or undue. Findings of the Court on Delay:

56. The submission of Dr.Chaudhary is that there are specific periods of unexplained delay which would render the sentence of death inexecutable. The periods of delay are highlighted are as under: Starting Date 22.3.2012 End Date 23.11.2012 Time period 8 months Jail Superintendent, Raipur seeks inputs on the mercy petition from the District Magistrate, Koriya District Magistrate, Koriya sends his input in the negative. 08.04.2013 27.05.2013 1 month 20 days Mercy petition rejected by the Governor Govt. of Chhattisgarh forwards mercy petition to Govt. of India 31.07.2013 1 month 24 days Nothing made in file for expediting proceedings. 06.06.2013 Ministry of Home Affairs was intimated about the rejection by Governor and was forwarded the mercy petition W.P. (Crl) 441/2015 Page 45 of 95 Starting Date 10.09.2013 End Date 20.02.2014 Time period 5 months 9 days Status of absconding individuals, Trial Court Records and Police Diary sought for from the State of Chhattisgarh Decision taken that the mercy petition may be finally processed for submission to the President for consideration thereof. Total Time Period:

1. year 4 months and 13 days 57. From the aforegoing, it is clear that there are some specify period of delay wherein the respondents have failed to reasonably explain the delay. At the same time, we may note that it is not unexplained delay ipso facto, which entitles the convict to seek commutation of his sentence. It should also be unreasonable for it to vitiate the decision. That is not so in the present case. Further, the total time taken in deciding the mercy petition was 2 years 2 months; this period by no means can be said to be inordinate. Consequently, this ground urged by the learned counsel for the petitioner is rejected. SOLITARY CONFINEMENT58 The next contention of the learned counsel for the petitioner is that the petitioner has been kept in illegal solitary confinement for over five years in a small cell with walls on all sides and iron bars in the front. It has been contended that the petitioner was kept in solitary confinement for 2 and a half years in Ambikapur Jail and subsequently, he was moved to Raipur Central Prison where also he was kept under solitary confinement for 3 years. In total, the W.P. (Crl) 441/2015 Page 46 of 95 petitioner has been under illegal custody for 5 and a half years entitling him to commutation of sentence.

59. Dr.Chaudhary has drawn the attention of this Court to a sworn affidavit of the petitioner herein stating that he was in solitary confinement for 5 and a half years. It has also been submitted that when an advocate on behalf of the petitioner went to inspect the cell in which the petitioner was confined from 01.01.2011 to 01.01.2015, the request was rejected by the Jail Superintendent, Central Jail, Raipur. An affidavit of the advocate is placed on record specifically averring that the Jail Superintendent had refused to acknowledge its receipt.

60. The stand of the Union of India/respondent no.1 is that the ground of solitary confinement had never been raised by the petitioner in his mercy petition and that the averment is contradictory to paragraph 29 of the writ petition. The respondent no.2 has contended that the averments of the petitioner are false as the convict was never kept in solitary confinement or fansi yard. Mr.Jha has also highlighted the contradiction in paragraph 29 of the writ petition.

61. Prior to venturing into the factual aspect, we deem it appropriate to deal with the submission of the learned counsel for the respondents in respect of paragraph 29 of the petition. Paragraph 29 of the writ petition reads as under: “29. The

... Petitioner

says that he has been leading a very disciplined and orderly life in prison assisting fellow prisoners and officials alike. Through his conduct, he has exhibited concern for the welfare of others and tended to their social, emotional and spiritual needs. The jail authorities have testified to the good conduct of the

... Petitioner

.” (Emphasis Supplied) W.P. (Crl) 441/2015 Page 47 of 95 62. The respondents have argued that paragraph 29 is repugnant to the submissions on solitary confinement and thus, the petitioner has contradicted himself. We do not agree with this submission as the paragraph does not expressly or by implication exclude the possibility of solitary confinement of the petitioner; even otherwise, when the petition is read as a whole, it is patent that the petitioner has averred in unequivocal terms that he was in solitary for two specific periods.

63. We now proceed to analyse whether the petitioner was, infact, in solitary confinement as defined in Sunil Batra v. Delhi Administration & Ors., (1978) 4 SCC494 1978 Cr.L.J.

1741 (SC).

64. The petitioner has alleged that he was kept in solitary confinement for two periods: (i) (ii) between 27.02.2008 to June, 2010 at Ambikapur Jail; and between 2011 to 2014 at the Central Jail, Raipur.

65. In the counter affidavit filed on behalf of the respondent no.2, a detailed chart has been given as to the details where the petitioner was kept. We deem it appropriate to extract the corresponding periods of the chart as under:

07. 04.2009 to 20.06.2010 14.09.2011 The petitioner was kept in a separate barrack along with 2 other prisoners. Alongside petitioners barrack there were 3 other barracks in which 200 prisoners were living. The prisoners used to use common toilet and bathing facilities. All prisoners were allowed to roam around and talk to each other freely. The petitioner was shifted to another sector of the jail premises [Raipur Central Jail]. which has 24 rooms with attached toilets. These 24 rooms have veranda in front. Many prisoners stay in these 24 rooms. All W.P. (Crl) 441/2015 Page 48 of 95 prisoners of these 24 rooms live together, they eat together and do gardening in the front lawns. They have a facility of TV, newspaper etc. The petitioner is currently living with 30 other prisoners in barrack No.1,central jail, Raipur. 20.10.2014 66. Noting the anomaly in the submission for the period between 07.04.2009 to 20.06.2010 that the term „a separate barrack‟ would indicate a number of rooms and not one room, the respondent no.2 was directed to clarify the position by an additional affidavit by an order of this Court dated 21.05.2015. Accordingly, an additional affidavit has been filed wherein it has been clearly stated “ that the barrack is one single room and not number of rooms.” Thus, in view of the affidavit that the barrack was shared by 2 other prisoners, for this period atleast, the petitioner cannot be said to be in solitary confinement.

67. In respect of the second period between 14.09.2011 and 20.10.2014, again the affidavit of the State of Chhattisgarh failed to throw light upon the actual factual scenario. It is simple logic that a human being does not live in the company of dormitories or rooms. Human being is a social animal, inasmuch as it lives in the company and comfort of other humans and not rooms or compartments. Thus, affidavit clearly omitted to mention the vital aspect as to number of occupants of the rooms, the number of convicts housed in one room, etc. During the course of arguments, we had specifically put to the counsel for the respondent no.2 that the detainees of the rooms lived in one room each or together: to which the answer was that they live in one room each. Upon enquiring as to what was the difference between this section and others, learned counsel was unable satisfactorily answer. The W.P. (Crl) 441/2015 Page 49 of 95 incarceration of the petitioner during this period can be gauged by our questions posed to the learned counsel for the respondent no.2 on 06.03.2017: Q: Are the verandahs common?. A: No.Q: The rooms are not common?. A: Yes. Q: To conclude: there are separate rooms, separate verandahs and separate toilets?. A: Yes.

68. At which point, Mr.Jha contended that the detainees were eating food together and thus, the same would not constitute solitary confinement. He has relied upon paragraph 92 of Sunil Batra (Supra) to substantiate his contention that the petitioner was not in solitary confinement as “[s].egregation of one person all alone in a single cell is solitary confinement”; which is not the case in the present proceedings.

69. In his rejoinder, Dr.Chaudhary has submitted that the petitioner has done whatever was possible and within his means to show that he was in solitary confinement; on the contrary, the documents pertaining to the incarceration of the petitioner are within the exclusive domain of the respondents herein and it was incumbent upon them to produce the same. Failing to do so, the Court may draw a negative inference against the respondents. Learned counsel had fortified his submission by relying upon the Rule of Best Evidence and Illustration (g) to Section 114 of the Indian Evidence Act, 1872. W.P. (Crl) 441/2015 Page 50 of 95 70. In this backdrop, we proceed to analyse the contentions of the parties.

71. Solitary confinement is a separate and independent punishment prescribed by the Indian Penal Code, 1860 in Sections 73, subject to limitations contained in Section 74 and it can be imposed only by a judicial order and not otherwise.

72. Since Section 30(2) of the Prisons Act, 1894 provided for what seemed to be a parallel punishment at the hands of the executive, Mr.Sunil Batra approached the Apex Court under Article 32 in Sunil Batra (Supra) of the Constitution alleging de facto solitary confinement without de jure sanction. The matter was heard by a Constitutional Bench of the Apex Court. The grievance of the petitioner therein was that he had been locked up in a “single cell with a small, walled yard attached, beyond the view and voice of others save the jail guards and formal visitors in discharge of their official chores and few callers once in a blue moon.” (paragraph

44) The cell in which Batra had been confined was inspected by the Judges of the Supreme Court, whose inspection notes are quoted in the opinion of V.R. Krishna Iyer, J.

as under: “We inspected the cell in which the prisoner was confined. We were relieved to find that conditions there did not correspond to the picture which eloquent arguments of his counsel before us conjured up in our minds. We had been led to believe that the prisoner was kept in some kind of a dungeon with only a small hole through which light could penetrate only when there was enough sunshine. It was true that the prisoner was living in a room with a cemented floor and with no bed, furniture, or windows in it. The light came from a ventilator with iron bars on the wall at the back of the room and the wide gate of iron bars in front. The light was, however, enough. It is also true that W.P. (Crl) 441/2015 Page 51 of 95 there was no separate room for the petitioner to take a bath in or to answer calls of nature. But, in this very room, the site of which given on a diagram furnished by the jail authorities, water and sanitary fittings were installed in one corner of the room. In front of the room there was a small verandah with pakka walls and iron gates separating each side of it from a similar verandah in front of an adjoining cell. The entrance into this verandah was also through a similar iron gate. The inner room in which the prisoner was confined had also a gate of iron bars. All gates were with iron bars on frames so that one could see across them through the spaces between the bars. All these gates were locked. We learnt that the petitioner was able to come into the verandah at certain times of the day. At that time only he could communicate with other similarly kept prisoners whom he could see and talk to through the iron bars. In other words, for all practical purposes, it was a kind of solitary confinement. We did not see a separate guard for each prisoner in the row of cells for prisoners sentenced to death. All these prisoners were certainly segregated and kept apart. But it is difficult to determine, without going into the meaning of ‗solitary confinement‘, as a term of law whether the conditions in which the petitioner was kept amounted to ‗solitary confinement‘. Probably, if small windows with iron bars were provided between one cell and another, the prisoners could talk to each other also so that the confinement would no longer be solitary despite the fact that they are kept in separate adjoining cells. The petitioner did not complain of any discomfort other than being kept in ‗solitary confinement‘ and being made to sleep on the floor. He asked us to see another part of the prison where undertrials were kept. When we visited that part, we found dormitories provided there for undertrial prisoners who had beds there and their own bedding and clothing. They also had, in that part of the prison, radio sets, some of which belonged to the prisoners and others to the jail. The undertrials were allowed to mix with each other, play games, or do what they wanted within a compound.” W.P. (Crl) 441/2015 Page 52 of 95 (Emphasis Supplied) 73. The treatment of Batra was found to be “little short of solitary confinement” and it was directed that the prisoner shall not be kept in confinement.

74. The Bench went on to hold that Section 30 (2) of the Prisons Act merely enabled the authorities to separate or segregate the prisoner on death row from other prisoner; it did not allow segregation into an isolated cell, but only that “in a cell where there are a plurality of inmates the death sentence will have to be kept separated from the rest in the same cell but not too close to the others.” This separation was to be achived by placing a guard between the condemned prisoner and the other convicts and at the same time, such facility was not mandatory, i.e. to be imposed only if discipline warranted it. Another aspect noted was that the treatment could only be given to a prisoner „under sentence of death‟. The phrase was read by the Apex Court to mean that S.30 (2) would only be applicable once the final „nay‟ had been received and nothing remained but the hangman‟s lethal move. It was to be meted out only after the rejection of the mercy petition by the President and not before.

75. Since the counsel for the respondents have contended that the petitioner was not in solitary confinement as all the prisoners in the separate sector of the Raipur Central Jail used to eat together, we may discern the meaning of „solitary confinement‟ as given in Sunil Batra (Supra). We may note the following paragraphs from the erudite opinion of V.R. Krishna Iyer, J.: W.P. (Crl) 441/2015 Page 53 of 95 by insulation then exists inflicted the petitioner “89. ... His contention is that solitary confinement is a separate substantive punishment of maddening severity prescribed by Section 73 of the Indian Penal Code which can be imposed only by the Court; and so tormenting is this sentence that even the socially less sensitive Penal Code of 1860 has interposed, in its cruel tenderness, intervals, maxima and like softening features in both Sections 73 and 74. Such being the penal situation, it is argued that the incarceratory the Prison Superintendent on is virtual solitary confinement unauthorised by the Penal Code and, therefore, illegal. Admittedly, no solitary confinement has been awarded to Batra. So, if he is de facto so confined it is illegal. Nor does a sentence of death under Section 53 IPC carry with it a supplementary secret clause of solitary confinement. What warrant for solitary confinement on Batra?. None. The answer offered is that he is not under solitary confinement. He is under ‗statutory confinement‘ under the authority of Section 30(2) of the Prisons Act read with Section 366 (2) CrPC, 1973. It will be a stultification of judicial power if, under guise of using Section 30(2) of the Prisons Act, the Superintendent inflicts what is substantially solitary confinement which is a species of punishment exclusively within the jurisdiction of the criminal court. We hold, without hesitation, that Sunil Batra shall not be solitarily confined. Can he be segregated from view and voice and visits and commingling, by resort to Section 30(2) of the Prisons Act and reach the same result?. To give the answer we must examine the essentials of solitary confinement to distinguish it from being ‗confined in a cell apart from all other prisoners‘. 89-A. If solitary confinement is a revolt against society's humane essence, there is no reason to permit the same punishment to be smuggled into the prison system by naming it differently. Law is not a formal label, nor logomachy but a working technique of justice. The Penal Code and the Criminal Procedure Code regard punitive solitude too harsh and to permit preventive solitary confinement, released even from intended the Legislature cannot be W.P. (Crl) 441/2015 Page 54 of 95 is solitary cell confinement. That the restrictions of Sections 73 and 74 IPC, Section 29 of the Prisons Act and the restrictive Prison Rules. It would be extraordinary that a far worse solitary confinement, masked as safe custody, sans maximum, sans intermission, sans judicial oversight or natural justice, would be sanctioned. Commonsense quarrels with such nonsense. … 92. Confinement inside a prison does not necessarily import cellular isolation. Segregation of one person all alone in a single is a separate punishment which the Court alone can impose. It would be a subversion of this statutory provision (Sections 73 and 74 IPC) to impart a meaning to Section 30(2) of the Prisons Act whereby a disciplinary variant of solitary confinement can be clamped down on a prisoner, although no court has awarded such a punishment, by a mere construction, which clothes an executive officer, who happens to be the governor of the jail, with harsh judicial powers to be exercised by punitive restrictions and unaccountable to anyone, the power being discretionary and disciplinary.

93. Indeed, in a jail, cells are ordinarily occupied by more than one inmate and community life inside dormitories and cells is common. Therefore, ―to be confined in a cell‖ does not compel us to the conclusion that the confinement should be in a solitary cell. … 96. Sub-section (6) and (7) relate to ―irons‖ and have relevance to the Sobraj case which we will presently deal with. Sub-section (8) speaks of ―separate confinement‖ for any period not exceeding three months. There is a further explanation which to some extent softens the seclusion. It obligates the authority not to keep the prisoner ―from sight of other prisoners‖ and allows him not less than one hour's exercise per diem and to have his meals in association with other prisoners. Thus it is clear that even if a grave prison offence has been committed, the punishment does not carry segregated cellular existence and permits life in association in mess and exercise, in view and voice but not in W.P. (Crl) 441/2015 Page 55 of 95 interdicts its rigour. It entirely excludes a prisoner communication with other prisoners. Moreover, punitive separate confinement shall not exceed three months and Section 47 the combination of cellular confinement and ―separate confinement‖ so as not to exceed together the periods specified there. It is useful to mention that ―cellular confinement‖ is a stricter punishment than separate confinement and it cannot exceed 14 days because of from communication with other prisoners but it shall not exclude a prisoner from sight of other prisoners. … 99. An analysis of the provisions of the Penal Code and of the Prisons Act yields the clear inference that Section 30(2) relates to separation without isolation, keeping apart without close confinement. Whatever the consequence of the ‗solitary‘ regime has been maddening: [ Britannica Book of the Year 1975—Events of 1974, p. 567]. the name, ―So many convicts went mad or died as a consequence of the solitary regime that by the mid- 19th century it was generally abandoned...‖ The ‗separate system‘, the ―silent system‖, the ―hole‖ and other variants possess the same vice. In the present case we are satisfied that what reigns in Tihar for ‗condemned‘ prisoners is sound-proof, sight-proof, society-proof cellular insulation which is a first cousin to solitary confinement. … 107. Since arguments have been addressed, let us enquire what are the vital components of solitary confinement?. Absent statutory definition, the indication we have is in the Explanation to para 510 of the Jail Manual: ―Solitary confinement means such confinement with or without labour as entirely secludes the prisoner both from sight of, and communication with, other prisoners.‖ 108. The hard core of such confinement is (a) seclusion of the prisoner, (b) from sight of other prisoners, and (c) from communication with other prisoners. To see a fellow being is a solace to the soul. Communication with one's own kind is a balm to the aching spirit. Denial of both, W.P. (Crl) 441/2015 Page 56 of 95 the matter with complete segregation superimposed, is the journey to insanity. To test whether a certain type of segregation is, in Indian terms, solitary confinement, we have merely to verify whether interdict on sight and communication with other prisoners is imposed. It is no use providing view of or conversation with jail visitors, jail officers or stray relations. The crux of is communication with other prisoners in full view. Bed fellows in misery have heartloads to unload and real conversation between them has a healing effect. Now that we have an Indian conceptualisation of solitary confinement in the Prison Manual itself, lexical exercises, decisional erudition from other countries and lagomachic niceties with reference to law dictionaries are supererogatory. Even the backward psychiatry of the Jail Manual considers continuation of such confinement as ―likely to prove injurious to mind or body‖ or even prone to make the person ―permanently unfit to undergo such confinement‖ [vide para 512(7) and (9) of the Jail Manual]..

109. In Words and Phrases (Permanent Edn.) solitary confinement as a punishment is regarded as ―the complete isolation of the prisoner from all human society and his confinement in a cell of considerable size so arranged that he had no direct intercourse or sight of any human being and no employment or instruction.‖ It is worthwhile comparing the allied but less harsh confinement called ―close confinement‖ which means ―such custody, and only such custody as will safely secure the production of the body of the prisoner on the day appointed for his execution.‖ 110. A more practical identification of solitary confinement is what we find in Black's Law Dictionary: ―In a general sense, the separate confinement of a prisoner, with only occasional access of any other person, and that only at the discretion of the jailor, in a stricter sense, the complete isolation of a prisoner from all human society and his confinement in a cell so arranged that he has no direct intercourse with or sight of any human being, and no employment or instruction.‖ W.P. (Crl) 441/2015 Page 57 of 95 Complete isolation from all human society is solitary confinement in its stricter sense. The separate confinement of a person with occasional access of other persons is also solitary confinement. (Emphasis Supplied) 76. V.R. Krishna Iyer, J.

concluded as under: “(2) I hold that solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 for prisoners ―under sentence of death‖. But it is legal under that section to separate such sentences from the rest of the prison community during hours when prisoners are generally locked in. I also uphold the special watch, day and night, of such sentences by guards. Infraction of privacy may be inevitable. But guards must concede minimum human privacy in practice.” (Emphasis Supplied) 77. The test to determine whether the confinement was solitary or not remains seclusion from sight and communication from other prisoners. It is not necessary that such seclusion must be absolute and as was the case with Mr.Batra, even quasi-solitary confinement is not allowed. For the same reason, the reliance placed by the learned counsel for the respondents upon one line in paragraph 92 of the judgment is misplaced as it misses the true import of Sunil Batra (Supra). Even otherwise, it is settled law that a single line cannot be dissected from a judgment and treated as binding precedent [See Commissioner of Income Tax v. Sun Engineering Works (P) Ltd., (1992) 4 SCC363(paragraph 39)]..

78. The Full Bench of the Supreme Court in Shatrughan Chauhan (Supra) after referring to Sunil Batra (Supra) observed that additional and separate punishment of solitary confinement was not W.P. (Crl) 441/2015 Page 58 of 95 authorized by law. At the same time, the Court refused to interfere on that ground.

79. In Ajay Kumar Pal (Supra), unlawful solitary confinement coupled with delay led to the Supreme Court to commuting the punishment of the convict. The relevant portion reads as under: the petitioner “10. In the light of the enunciation of law by this Court, the petitioner could never have been ―segregated‖ till his mercy petition was disposed of. It is only after such disposal that he could be said to be under a finally executable death sentence. The law laid down by this Court was not adhered to at all while confining in solitary confinement right since the order of death sentence by the first court. In our view, this is complete transgression of the right under Article 21 of the Constitution causing incalculable harm to the petitioner.

11. The combined effect of the inordinate delay in disposal of mercy petition and the solitary confinement for such a long period, in our considered view has caused deprivation of the most cherished right. A case is definitely made out under Article 32 of the Constitution of India and this Court deems it proper to reach out and grant solace to the petitioner for the ends of justice. We, therefore, commute the sentence and substitute the sentence of life imprisonment in place of death sentence awarded to the petitioner. The writ petition thus stands allowed.” (Emphasis Supplied) 80. In the present case, for the period 14.09.2011 and 20.10.2014, it emerges that the convicts were housed in separate rooms with separate verandahs and separate toilets, though they ate food together. This is clearly the first cousin of solitary confinement, which was imposed upon the petitioner. The same was imposed in the absence of a judicial order and when the petitioner was not „under sentence of death‟ inasmuch as the mercy petition was rejected by the President W.P. (Crl) 441/2015 Page 59 of 95 only on 05.05.2014 [See Sunil Batra (Supra) (paragraphs 197 (5) and 223].. Thus, we find that the petitioner was illegally kept in solitary confinement despite not being „under a sentence of death‟ for a period of about 3 years. IMPROPER EXERCISE OF POWER81 The last ground urged by Dr.Chaudhary is in respect of improper exercise of power by the Governor and the President of India. He submits that the power under Article 72 and 161 is justifiable under a strict and narrow scope by the Constitutional Courts.

82. Learned counsel for the petitioner submits that the numerous relevant considerations were ignored by the Union Government as well as the State Government while tendering their advice. The submission regarding relevant consideration alleged to have been ignored are below:

82. 1 The trial court record and the police diary were not considered by the Union Government. Learned counsel submits that it is patent from the counter affidavits filed before this Court that despite numerous reminders being sent to the State Government by the Union Government, the trial court record and the police diary were never furnished. The Union Government then decided to process the mercy petition without these documents. It has been submitted that these documents were crucial and vital for the adjudication of the mercy petition, which is evident from the fact that four reminders were sent by the respondent no.1. It is submitted that these documents were essential to fulfil one of the guidelines issued by the respondent no.1 i.e. fixation of responsibility in gang murder cases. Our attention was W.P. (Crl) 441/2015 Page 60 of 95 also diverted to the word “shall” contained in Rule V of the Instructions issued by the Ministry of Home Affairs, already extracted in paragraph 34 aforegoing. 82.2 The second relevant consideration ignored by both the Union and the State Governments was the mitigating circumstances noted by the trial court in its judgment in paragraph 121. The Trial Court had considered that no previous conviction, young age and the fact that the petitioner stayed put even during a jail break were mitigating circumstances weighing in favour of the petitioner. These have not been considered by the respondents. 82.3 It is next submitted that the recommendation of the Jail Superintendent was not considered by either of the respondents. Our attention was drawn to the opinion of the Jail Superintendent, wherein he had recommended in favour of the petitioner herein. It has been submitted that it is the Jail Superintendent who interacts on a daily basis with the convicts and thus, is the best position to opine as to their character, reformation, penitence and whether they posed any threat to the prison population and the guards. He draws credence in his submission by relying upon paragraph 224 of Shatrughan Chauhan (Supra). 82.4 Learned counsel contends that the conduct of the prisoner in prison was not considered by the respondents. He submits that the petitioner did not try to escape even during a jail break, which shows that the petitioner had reformed, repented to his crime and was willing to submit to the due process of law. Reliance is placed on Satpal and Another v. State of Haryana and Others, (2000) 5 SCC170and W.P. (Crl) 441/2015 Page 61 of 95 Narayan Dutt and Others v. State of Punjab and Another, (2011) 4 SCC353(paragraph 25). 82.5 The duration of custody already undergone by the petitioner was not considered by the respondents. 82.6 The delay occasioned in deciding the mercy petition was not considered by the respondents. 82.7 The final relevant factor not considered was the young age of the petitioner on the date of the commission of the offence. Dr.Chaudhary submits that the petitioner was actually 18 years 2 months old on the date of the commission, while he had been wrongly shown to be 23 years. This fact was brought on record during the proceedings before the Apex Court in his review petition and was admitted by the counsel for the respondents. It is submitted that as per the guidelines, age is a very relevant consideration for the government in deciding whether or not the death sentence should be commuted. At the same time, it has been submitted that a fresh mercy petition has been moved highlighting this aspect on 24.05.2014.

83. It has also been contended by the learned counsel for the petitioner that extraneous circumstances had also been considered. Dr.Chaudhary submits that along with the affidavit filed by the respondent no.2 documents have been placed on record showing inputs being called for from various functionaries; however, these documents are with reference to pre-mature release and not in reference to commutation of death sentence. Learned counsel had extensively taken us through these documents to show that the inputs were for pre-mature release and the whole exercise was conducted W.P. (Crl) 441/2015 Page 62 of 95 under Rule 775 of the M.P. Jail Manual which has been extended to the State of Chhattisgarh (hereinafter the „Jail Manual‟). Drawing attention to Rule 775, it is submitted that the rule clearly applies to prisoners other than those under a sentence of death. It has been submitted that the considerations which are germane and relevant for deciding whether or not a prisoner‟s death sentence should be commuted are qualitatively different from those which apply to pre- mature release. Dr.Chaudhary submits that the petitioner, in law, could not have been granted pre-mature release prior to commutation of sentence. Only prisoners sentenced to life imprisonment or to a term of imprisonment can be granted pre-mature release. Learned counsel submits that a similar factual scenario had arisen in Peoples’ Union for Democratic Rights (PUDR) (Supra) wherein the State Government had processed the convict‟s mercy petition under rules which strictly excluded death sentence prisoners and only applied to other prisoners. The relevant paragraphs read are under: the part of 38. … Secondly, it is significant that in a matter as crucial as the fate of a death convict, there was a total lack of clarity on the applicability of its Government Order dated 13 April 205. Ex facie, the Government dated 13 April 2005 does not apply to cases of mercy petitions submitted by convicts under the sentence of death. The subject of the Government Order makes the position clear and we extract it in extensor: the State Government on W.P. (Crl) 441/2015 Page 63 of 95 This is made further evident by Para 2 of the Government Order. The Government Order, inter alia, requires an application of mind to various circumstances many of which have no bearing on a convict who has been sentenced to death. Yet, as the counters which have been filed by the State Government indicate, the matter was initially processed as if the Government Order dated 13 April 2005 applied to the situation. Thirdly, as we have also noted from the file it was the Prison Section which indicated in its file noting that matters relating to the grant of mercy to death convicts would not fall within its purview under the Business Rules of 1975 and that the matter would have to be proceeded for consideration before the Law Department. The Principal Secretary (Home) agreed with this position. Nonetheless he chose it fit to record his own opinion that the case is not fit for the grant of mercy. Having taken the firm position that the Home Department was not entitled to consider the matter in the first place, it defies explanation as to how a view was expressed on whether or not the petition deserved the grant of mercy by the Principal Secretary (Home). Such an observation was clearly beyond jurisdiction. This glaring lapse was compounded when the matter went to the Law Department. The Law Department proceeded on the basis that there was an opinion of the Home Secretary recommending the rejection of mercy. The Principal Secretary (Law), as the file would indicate, has not applied his mind independently at all. The manner in which the file has progressed reveals a disturbing state of affairs. Evidently, the State Government had no processes and systems in place to deal with or streamline the disposal of mercy petitions filed under Article 161 of the Constitution of death convicts. Surely, a matter as serious as one impinging upon the right to life of a convict cannot be dealt with in such a cavalier fashion.” (Emphasis Supplied) 84. Mr.Chawla, learned counsel for the Union, admits that the trial court record and the police diary were never received by the Union W.P. (Crl) 441/2015 Page 64 of 95 Government, but submits that the non-receipt of the documents is not fatal to the decision of the President. It is further submitted that the word „shall‟ contained in Rule V of the Instructions is only in respect of forwarding the petition and not qua the records of the case. It is submitted that these are instructions only and not statutory rules which can vitiate the order in case they are not strictly complied with. Therefore, these instructions are merely directory and not mandatory. Reliance is placed on May George v. Special Tehsildar and Others, (2010) 13 SCC98(paragraphs 15-19).

85. It is also submitted by the learned counsel for the Union Government that the attempt of the petitioner to make the Instructions mandatory would tie the hands of the President. It would be susceptible to misuse wherein the State Government can ensure the commutation of a death sentence by withholding documents.

86. It is next contended that the petitioner has also failed to show any prejudice owing to the same. To this end, learned counsel has relied upon the judgment of the Apex Court in State Bank of Patiala and Others v. S.K. Sharma, (1996) 3 SCC364(paragraphs 32 and 33).

87. In response to the submission that the actual age of the petitioner was not considered, Mr.Chawla states that the ground was never urged by the petitioner in his mercy petition. He submits that the factor was also raised before the Supreme Court when the review petition was filed, but has been rejected as the review stands dismissed. Thus, the aspect of age has already been considered by the Supreme Court and found that it was not relevant. W.P. (Crl) 441/2015 Page 65 of 95 88. On behalf of the respondent no.2/State of Chhattisgarh, Mr.Jha submitted that the mercy petition of the petitioner was never treated as one of pre-mature release. All along it was treated as a mercy petition from a prisoner awarded death sentence. He has drawn our attention to the mercy petition itself to point out that it clearly mentions that the prisoner has been awarded death penalty. He additionally contended that the petitioner has failed to show any prejudice occasioned owing to the mentioning of Rule 775. He also relies upon the judgment of the Supreme Court in S.K. Sharma (Supra).

89. Mr.Jha, learned counsel for respondent no.2, has also submitted that in Peoples’ Union for Democratic Rights (PUDR) (Supra) [paragraph 68 (iv)]. the mistake had led to the petition being processed by the wrong department, while in the present case the petition was all along treated as that of a death convict.

90. Prior to dealing with the rival contentions of the parties, we deem it appropriate to revisit the law on the power of the Courts to review the decisions of the President and the Governor under Articles 72 and 161 of the Constitution.

91. A Constitution Bench of the Supreme Court in Maru Ram & Ors. v. Union of India and Others, AIR1980SC2147 (1981) 1 SCC107was approached by more than two thousand prisoners on life imprisonment (labelled as „lifers‟ by Krishna Iyer J.) laying a challenge to Section 433-A of the Code of Criminal Procedure. The Apex Court considered the power of remission and commutation by both by the governments in exercise of its statutory power and by the President and the Governors exercising Constitutional mandate held W.P. (Crl) 441/2015 Page 66 of 95 that the same is not beyond judicial review. It could be subject to limited judicial review. V.R. Krishna Iyer, J., giving the opinion for the majority, held as under: “62. An issue of deeper import demands our consideration at this stage of the discussion. Wide as the power of pardon, commutation and release (Articles 72 and

161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course. Here, we come upon the second constitutional fundamental which underlies the submissions of counsel. It is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. We proceed on the basis that these axioms are valid in our constitutional order.

63. The jurisprudence of constitutionally canalised power as spelt out in the second proposition also did not meet with serious resistance from the learned Solicitor-General and, if we may say so rightly. Article 14 is an expression of the egalitarian spirit of the Constitution and is a clear pointer that arbitrariness is anathema under our system. It necessarily follows that the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must be informed by the finer canons of constitutionalism. … It is the pride of our constitutional order that all power, whatever its source, must, in its exercise, anathematise arbitrariness and obey standards and guidelines intelligible and intelligent and integrated with the manifest purpose of the power. From this angle even the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of presidential power.

64. Speaking generally, Lord Acton's dictum deserves attention: Letter to Mandell (later, Bishop) Creighton, April 5, 1987 HISTORICAL ESSAYS AND STUDIES, 1907 ―I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable W.P. (Crl) 441/2015 Page 67 of 95 presumption that they did no wrong. If there is any presumption it is the other way, against the holders of power, increasing as the power increases.‖ Likewise, Edmund Burke, the great British statesman gave correct counsel when he said: [ Reflections On The Revolution In France 7019]. ―All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author and Founder of society.‖ in this expression 65. Pardon, using the amplest connotation, ordains fair exercise, as we have indicated above. Political vendetta or party favouritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise. While constitutional power is beyond challenge, its actual exercise may still be vulnerable. Likewise, capricious criteria will void the exercise. … Push this logic a little further and the absurdity will be obvious. No constitutional power can be vulgarised by personal vanity of men in authority. Likewise, if an opposition leader is sentenced, but the circumstances cry for remission such as that he is suffering from cancer or that his wife is terminally ill or that he has completely reformed himself, the power of remission under Articles
may ordinarily be exercised and a refusal may be wrong-headed. If, on the other hand, a brutal murderer, bloodthirsty in his massacre, has been sentenced by a court with strong observations about his bestiality, it may be arrogant and irrelevant abuse of power to remit his entire life sentence the very next day after the conviction merely because he has joined the party in power or is a close relation of a political high-up. The court, if it finds frequent misuse of this power may have to investigate the discrimination. The proper thing to do, if Government is to keep faith with the founding fathers, is to make rules for its own guidance in the exercise of the pardon power keeping, of course, a large residuary W.P. (Crl) 441/2015 Page 68 of 95 power to meet special situations or sudden developments. This will exclude the vice of discrimination such as may arise where two persons have been convicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as religion, caste, colour or political loyalty.

66. Once we accept the basic thesis that the public power vested on a high pedestal has to be exercised justly the situation becomes simpler. The principal considerations will turn upon social good by remission or release. …” (Emphasis Supplied) 92. We note that the Bench had advised the government to formulate rules to guide its power and avoid discrimination; at the same time, keeping a large residuary power to meet special situations or sudden developments. Proceeding further, V.R. Krishna Iyer, J.

concluded as under: “72. We conclude by formulating our findings: … (8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. (9) Considerations for exercise of power under Articles
may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.” (Emphasis Supplied) W.P. (Crl) 441/2015 Page 69 of 95 93. A.D. Koushal, J.

though concurred with the majority opinion in respect of few conclusion, did not agree with the aforegoing conclusions reached by the majority. S.M. Fazal Ali, J.

gave a separate and concurring judgment, wherein it was held as under: “94. Doubtless, the President of India under Article 72 and the State Government under Article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions etc. This power can neither be altered, modified nor interfered with by any statutory provision. But, the fact remains that higher the power, the more cautious would be its exercise. This is particularly so because the present enactment has been passed by the Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising the powers under the aforesaid articles of the Constitution neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook the object, spirit and philosophy of Section 433-A so as to create a conflict between the legislative intent and the executive power. It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter.” (Emphasis Supplied) 94. Thereafter, the assassinator of Smt.Indira Gandhi had approached the Apex Court in Kehar Singh v. Union of India, (1989) 1 SCC204complaining that the President had refused to entertain his request for a personal hearing and rejected to re-appreciate evidence holding that the President “cannot go into the merits a case finally decided by the Highest Court of the Land.” The Constitutional Bench of the Supreme Court rejected the first contention finding that it was not obligatory on the part of the President to provide a personal hearing; but accepted W.P. (Crl) 441/2015 Page 70 of 95 the second contention that the President could very well go into the merits of the case. In respect of scope of judicial review, the Bench relying upon the judgment in Maru Ram (Supra) observed as under: “11. In the course of argument, the further question raised was whether judicial review extends to an examination of the order passed by the President under Article 72 of the Constitution. At the outset we think it should be clearly understood that we are confined to the question as to the area and scope of the President's power and not with the question whether it has been truly exercised on the merits. Indeed, we think that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram v. Union of India (1981) 1 SCR1196 1249. The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the court. … … 13. It seems to us that none of the submissions outlined above meets the case set up on behalf of the petitioner. We are concerned here with the question whether the President is precluded from examining the merits of the criminal case concluded by the dismissal of the appeal by this Court or it is open to him to consider the merits and decide whether he should grant relief under Article 72. We are not concerned with the merits of the decision taken by the President, nor do we see any conflict between the powers of the President and the finality attaching to the judicial record, a matter to which we have adverted earlier. Nor do we dispute that the power to pardon belongs exclusively to the President and the Governor under the Constitution. There is also no question involved in this case of asking for the reasons for the President's order. … We have already pointed out that the courts are the constitutional instrumentalities to go into the scope of Article 72 and no attempt is being made to W.P. (Crl) 441/2015 Page 71 of 95 analyse the exercise of the power under Article 72 on the merits. … 14. Upon the considerations to which we have adverted, it appears to us clear that the question as to the area of the President's power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.

15. …As regards the considerations to be applied by the President to the petition, we need say nothing more as the law in this behalf has already been laid down by this Court in Maru Ram.

16. Learned counsel for the petitioners next urged that in order to prevent an arbitrary exercise of power under Article 72 this Court should draw up a set of guidelines for regulating the exercise of the power. It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme.” (Emphasis Supplied) 95. The Full Bench in Ashok Kumar alias Golu v. Union of India and Others, (1991) 3 SCC498observed that there was no contradiction between the judgments in Maru Ram (Supra) and Kehar Singh (Supra) in respect of framing of guidelines for exercise of power under Article 72. Relying upon paragraph 16 of Kehar Singh (Supra), the Court observed as under: W.P. (Crl) 441/2015 Page 72 of 95 “17. …These observations do indicate that the Constitution Bench which decided Kehar Singh was of the view that the language of Article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may not be able to conceive of all myriad kinds and categories of cases which may come up for the exercise of such power. No doubt in Maru Ram case the Constitution Bench did recommend the framing of guidelines for the exercise of power under Articles
of the Constitution. But that was a mere recommendation and not a ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singh case. Therefore, the observation made by the Constitution Bench in Kehar Singh case does not upturn any ratio laid down in Maru Ram case. Nor has the bench in Kehar Singh case said anything with regard to using the provisions of extant Remission Rules as guidelines for the exercise of the clemency powers.” (Emphasis Supplied) 96. In Swaran Singh v. State of U.P. and Others, (1998) 4 SCC75 the Governor in exercise of his power under Article 161 of the Constitution had remitted the punishment of a convict undergoing life sentence for killing of one Joginder Singh to a period less than 2 years. This led to the bereaved son of Joginder Singh approaching the High Court challenging the decision of the Governor; the High Court dismissed the writ petition on the ground that the decision was not justiciable. This led to the appeal before the Full Bench of the Apex Court. The Bench found that the Governor was not apprised of the vital and relevant facts about the involvement of the prisoner in five other cases, rejection of earlier clemency, conduct in jail and the substantial time spent by the convict on parole. The order of the W.P. (Crl) 441/2015 Page 73 of 95 Governor was quashed and the matter was remanded back to the Governor for fresh consideration. K.T. Thomas, J., giving the opinion for the Bench, held as under: “12. In view of the aforesaid settled legal position, we cannot accept the rigid contention of the learned counsel for the third respondent that this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it.

13. In the present case, when the Governor was not posted with material facts such as those indicated above, the Governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner. Conversely, the order now impugned fringes on arbitrariness. What the Governor would have ordered if he were apprised of the above facts and materials is not for us to consider now because the Court cannot then go into the merits of the grounds which persuaded the Governor in taking a decision in exercise of the said power. Thus, when the order of the Governor impugned in these proceedings is subject to judicial review within the strict parameters laid down in Maru Ram case and reiterated in Kehar Singh case we feel that the Governor shall reconsider the petition of Doodh Nath in the light of those materials which he had no occasion to know earlier.” (Emphasis Supplied) 97. The appellant in Dhananjoy Chatterjee alias Dhana v. State of W.B. and Others, (2004) 9 SCC751had approached the Supreme Court aggrieved by the dismissal of his writ petitions by the High Court impugning the decision of the Governor rejecting his mercy petition. It was contended that the Governor was not apprised of the relevant W.P. (Crl) 441/2015 Page 74 of 95 facts and material and further that there was no proper application of mind. Upon perusing the original record, the Court found that relevant material including the mitigating factors were not placed before the Governor and consequently, the order was quashed remanding the matter back for fresh orders of the Governor. While coming to the conclusion, the Bench held that the material facts should be placed before the Governor and the failure to do so, had deprived the Governor of the opportunity of exercising his power in a fair and just manner vitiating the decision.

98. A Division Bench of the Apex Court in Epuru Sudhakar and Another v. Govt. of A.P. and Others, (2006) 8 SCC161was dealing with a challenge to a grant of remission by the Governor under Article 161. Arijit Pasayat, J., in his opinion, extensively dealt with the scope of judicial review and concluded as under: “34. The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds: (a) that the order has been passed without application of mind; (b) that the order is mala fide; (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials have been kept out of consideration; (e) that the order suffers from arbitrariness.” 99. S.H. Kapadia, J.

in his concurring opinion observed as under: “65. Exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, W.P. (Crl) 441/2015 Page 75 of 95 not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public considerations alone. The President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutations.

66. … The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. It can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. The Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of ―Government according to law‖. The ethos of ―Government according to law‖ requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future. W.P. (Crl) 441/2015 Page 76 of 95 67. The power under Article 72 as also under Article 161 of the Constitution is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case. The exercise of power depends upon the facts and circumstances of each case and the necessity or justification for exercise of that power has to be judged from case to case. It is important to bear in mind that every aspect of the exercise of the power under Article 72 as also under Article 161 does not fall in the judicial domain. In certain cases, a particular aspect may not be justiciable. However, even in such cases there has to exist requisite material on the basis of which the power is exercised under Article 72 or under Article 161 of the Constitution, as the case may be. In the circumstances, one cannot draw the guidelines for regulating the exercise of the power.

68. As stated above, exercise or non-exercise of the power of pardon by the President or the Governor is not immune from judicial review. Though, the circumstances and the criteria to guide exercise of this power may be infinite, one principle is definite and admits of no doubt, namely, that the impugned decision must indicate exercise of the power by application of manageable standards and in such cases courts will not interfere in its supervisory jurisdiction. By manageable standards we mean standards expected in functioning democracy. A pardon obtained by fraud or granted by mistake or granted for improper reasons would invite judicial review. The prerogative power is the flexible power and its exercise can and should be adapted to meet the circumstances of the particular case. The constitutional justification for judicial review, and the vindication of the Rule of Law remain constant in all areas, but the mechanism for giving effect to that justification varies.

69. In conclusion, it may be stated that, there is a clear symmetry between the constitutional rationale for review of statutory and prerogative power. In each case, the courts have to ensure that the authority is used in a manner which is consistent with the Rule of Law, which is the fundamental principle of good administration. In each case, the Rule of W.P. (Crl) 441/2015 Page 77 of 95 Law should be the overarching constitutional justification for judicial review. The exercise of prerogative power cannot be placed in straitjacket formula and the perceptions regarding the extent and amplitude of this power are bound to vary. However, when the impugned decision does not indicate any data or manageable standards, the decision amounts to derogation of an important constitutional principle of Rule of Law.” (Emphasis Supplied) 100. The Bench ultimately found that irrelevant and extraneous materials had entered into the decision-making process, thereby vitiating it. The order was set-aside and the matter was remanded back to the Governor.

101. In Narayan Dutt (Supra), the Supreme Court quashed the decis ion of the Governor granting pardon under Article 161 on two counts: first, the pendency of appeals of the accused was not brought to the notice of the Governor; and second, that the Governor had trenched upon the judicial domain by pronouncing the innocence of the accused. Thus, the matter was quashed and remanded back for fresh consideration.

102. Recently, in Shatrughan Chauhan (Supra), the Full Bench of the Supreme Court observed as under: “20. As already emphasised, the power of the executive to grant pardon under Articles
is a constitutional power and this Court, on numerous occasions, has declined to frame guidelines for the exercise of power under the said Articles for two reasons: firstly, it is a settled proposition that there is always a presumption that the constitutional authority acts with application of mind as has been reiterated in Bikas Chatterjee v. Union of India [Bikas Chatterjee v. Union of India, (2004) 7 SCC634:

2004. SCC (Cri) 2018]. . Secondly, this Court, over the span of years, unanimously took the view that considering the nature of W.P. (Crl) 441/2015 Page 78 of 95 power enshrined in Articles 72/161, it is unnecessary to spell out specific guidelines. … 22. Nevertheless, this Court has been of the consistent view that the executive orders under Articles
should be subject to limited judicial review based on the rationale that the power under Articles
is per se above judicial review but the manner of exercise of power is certainly subject to judicial review. Accordingly, there is no dispute as to the settled legal proposition that the power exercised under Articles
could be the subject-matter of limited judicial review. … … 25. A perusal of the above case law makes it clear that the President/Governor is not bound to hear a petition for mercy before taking a decision on the petition. The manner of exercise of the power under the said Articles is primarily a matter of discretion and ordinarily the courts would not interfere with the decision on merits. However, the courts retain the limited power of judicial review to ensure that the constitutional authorities consider all the relevant materials before arriving at a conclusion.” (Emphasis Supplied) 103. From the aforegoing, it is clear that since the decision in Maru Ram (Supra) it is well-settled that the Constitutional mandate under Articles 72 and 161 reposed by the citizens in the executive cannot be used in an unbridled manner without any judicial scrutiny whatsoever. It is subject to limited judicial review. At the same time, there is a presumption that the constitutional authority acts with application of mind. Thus, it is the decision of the President and Governor being the heads of the Indian State and its constituent states that is immune from review. But that decision, is taken upon the aid and advice of the Ministers and this action on the part of the Ministers is not immune W.P. (Crl) 441/2015 Page 79 of 95 and reviewable by the Constitutional Courts. It has been held that constitutional power should be exercised in tune with the finer canons of constitutionalism and not arbitrarily or mala fidely. All relevant aspects must be placed by the ministers before the President/Governor and the decision should not be based on any extraneous material. As to what amounts to relevant consideration has to be judged on a case to case basis as the power is of the widest amplitude and can contemplate a myriad kinds and categories of cases. Wherever the courts have found that the relevant considerations have not been taken into account or extraneous considerations have crept in, the orders of the executive have been set-aside and the matter remanded for fresh consideration.

104. We may add that from the aforegoing conspectus of judicial pronouncements it is patent that once the Constitutional Court has come to a conclusion that a fact was a relevant consideration, but not placed or the order has been passed on extraneous consideration, the courts have inevitably quashed the orders. No question of substantial compliance or the test of prejudice can arise. Thus, any reliance upon the judgment in S.K. Sharma (Supra) is misplaced. Further the judgment is in the context of disciplinary proceedings in service jurisprudence where the considerations, tests and implications are wholly different.

105. Thus, we proceed to analyse the case before us. The original records had been handed over in Court on 09.03.2017 and have been meticulously examined by us. W.P. (Crl) 441/2015 Page 80 of 95 106. Prior to dealing with the contentions, an objection has been raised that since these aspects were raised before the Supreme Court in review, the petitioner is precluded from raising the same before us. We reject the contention at the threshold itself as the review by the Apex Court is of its own judgment is a continuation of the judicial process. It is adjudicated whether the grounds have any bearing upon the judicial record and not the power of clemency. The proper exercise of clemency power was never before the Supreme Court. Therefore, it cannot be said that the Apex Court returned any finding on the relevancy of these factors for powers under Article 72 and 161. Thus, we reject the objection urged by the counsel for the respondents [See Kehar Singh (Supra) (Paragraphs 10 and

13) and Shatrughan Chauhan (Supra) (Paragraph 14)]..

107. Dr.Chaudhary has contended that numerous relevant considerations had not been placed. Upon examining the original records, the following emerges: Factor alleged to have not been Considered by: Placed State Governme nt Union Governme nt Mitigating Circumstances noticed by the Trial Court Recommendation of Superintendent the Jail Conduct in Prison Duration of custody Delay in deciding mercy petition Young age   Only its receipt is mentioned.           (23 years) Note: Submission with regard to Trial Court Record and Police Diary has been dealt with separately. W.P. (Crl) 441/2015 Page 81 of 95 108. From the aforegoing, it is clear that the relevant considerations of the mitigating circumstances, recommendation of the jail superintendent and the young age of the petitioner were not placed before the Governor. Thus, denying the Governor the opportunity to apply his mind on all these considerations.

109. In respect of the conduct in prison and the duration of custody not having been placed before the President and the Governor, we are unable to come to a conclusion that the same were relevant considerations for commutation of a death sentence. If anything, the factors are already implicit in the recommendation of the Jail Superintendent. As regards reliance placed upon Satpal (Supra), the judgment is in the background of remission of life sentence and not commutation of death penalty. The relevant portions of the judgment reads as under: “6. …That apart, the Governor has not been made aware of as to what is the total period of sentence the accused has really undergone, and if at all has undergone any sentence. When an accused is convicted of the heinous offence of murder and is sentenced to imprisonment for life the authority who has been conferred with power to grant pardon and remission of sentence under Article 161 of the Constitution must be made aware of the period of sentence in fact undergone by the said convict as well as his conduct and behaviour while he has been undergoing the sentence which would all be germane considerations for exercise of the power. Not being aware of such material facts would tend to make an order of granting pardon arbitrary and irrational, as has been held by this Court in Swaran Singh case.…” (Emphasis Supplied) W.P. (Crl) 441/2015 Page 82 of 95 110. Further, the Supreme Court in Narayan Dutt (Supra) (paragraph 24 and

25) has merely cited Satpal (Supra), while the relevant considerations ignored therein were different. What amounts to a relevant consideration may be different in accordance with the purpose for which the power is sought to be invoked. Thus, in the present case it cannot be said that the conduct of the prisoner and the duration in custody were relevant considerations.

111. Dr.Chaudhary has also contended that the trial court record and the case diary were not sent and thus, the decision of the President is vitiated. Upon perusal of the original records, it is patent that the documents were never sent to the Central Government. The documents were sent on 07.05.2014 by the Superintendent of Police, Koriya while the mercy petition had been rejected by the President two days back on 05.05.2014. The note placed before the President has duly mentioned of the fact that despite request, the State Government had failed to send the documents and the case was suitably processed to avoid delay.

112. Learned counsel for the petitioner has placed heavy reliance upon Rule V of the Instructions framed by the Ministry of Home Affairs wherein it has been stated that whenever a mercy petition is to be forwarded to the Union Government, the State “shall forward such petition as expeditiously as possible along with the records of the case.” We are unable to accept that the same, in any way, can be read to lay down that the „records of the case‟ are a relevant consideration in every case and the denial of the same would vitiate the decision. The rule has been framed to ensure that there is no delay in receiving W.P. (Crl) 441/2015 Page 83 of 95 all the documents, which may be required to process the case. The Supreme Court has also deprecated upon calling of records in a piecemeal fashion [See Shatrughan Chauhan (Supra) (paragraph 103)]..

113. We also note that the Ministry of Home Affairs has framed broad guidelines generally considered while examining the mercy petition, which have been stated in the counter affidavit filed by the respondent no.1. We deem it appropriate to reproduce the same below: “The broad guidelines generally considered while examining the mercy petition in the Ministry of Home Affairs, states that clemency is justified on the following grounds:-

"i. Personality of the accused (such as age, sex or mental deficiency) or the circumstances of the case (such as provocation or other similar justification). Cases in which the Appellate Court has expressed its doubt as to the reliability of the evidence and has nevertheless decided on conviction. ii. iii. Cases where it is alleged that fresh evidence is obtainable mainly with a view to seeking whether fresh enquiry is justified. iv. Where the High Court has reversed on appeal an acquittal by the Session Judge or has on appeal enhanced the sentence. Difference of opinion in a Bench of two Judges necessitating reference to the third Judge of the High Court. v. vi. Consideration of evidence in fixation of responsibility in gang murder cases. vii. Long delays in the investigation and trial etc.” (Emphasis Supplied) 114. While examining the original record, it came to our notice that the guidelines have been adhered to by the Union Government in letter W.P. (Crl) 441/2015 Page 84 of 95 and spirit. This a welcome step in furtherance of the recommendation of the Constitution Bench of the Apex Court in Maru Ram (Supra). The same would minimize arbitrariness and reduce the chances of discriminatory treatment.

115. As a necessary consequence, the question which arises is as to whether these guidelines can be said to be mandatory in nature, viz. the failure to consider any of these aspects would ipso facto vitiate the decision of the President owing to non-consideration of relevant material. We think not. It has been repeatedly held that the relevant considerations under exercise of powers under Article 72 and 161 of the Constitution are to be adjudged on a case to case basis. No fixed guidelines can be framed as the power can contemplate myriad kinds and categories of cases, but at the same time, no consideration can be said to be wholly irrelevant [See Maru Ram (Supra); Kehar Singh (Supra); Ashok Kumar alias Golu (Supra); Epuru Sudhakar (Supra); and Shatrughan Chauhan (Supra)].. We are further fortified in our view by the word „broadly‟ used for the guidelines.

116. Coming to the case at hand, the note prepared for the President clearly states that the trial court record and the case diary have not been received from the State Government; but a conscious decision was taken to process the matter. While following Guideline vi., it was concluded that the specific role of the petitioner could not be determined. Being well-aware of this impediment, the President exercised his power under Article 72 of the Constitution. It is not a consideration which was not placed before the President as he was apprised of the lack of the documents. This seems to introduce a third W.P. (Crl) 441/2015 Page 85 of 95 category of factors in death-row jurisprudence. Generally all considerations could be categorised into two: first, relevant consideration, ignorance of which shall vitiate the decision; and second, one which is not relevant having no bearing on the decision. The third which arises is the consideration which has borne upon the mind of the President and yet, he deems the consideration irrelevant and proceeds on that basis. In such a scenario, it may not be favourable for Courts to come to a divergent conclusion as the same would amount to trenching upon the domain reserved for the sovereign. The presumption remains that the President acts with due application of mind [See Bikas Chatterjee v. Union of India, (2004) 7 SCC634(paragraphs 10-14)]..

117. Accordingly, we do not find that the ascertaining of individual responsibility or the analysis of the case diary or the trial court record were relevant considerations.

118. One of the factors contended before us is that the actual age of the petitioner was not considered. It is true that in the note prepared for the President, the age of the petitioner on the date of the crime has been taken to be 23 years and not 18 years 2 months as alleged before us. We notice that in the mercy petition no such ground was urged and even in the note prepared for the President it has specifically been stated that the “mercy petition reveals no new facts or evidence warranting reconsideration of the case or quantum of punishment.” Thus, what in effect has been argued before us is that in every case it would be incumbent upon the Government to ascertain whether the age on record is the actual age or not. We are view that an enquiry W.P. (Crl) 441/2015 Page 86 of 95 into every fact cannot be mandated at this stage. If something has been specifically urged in the mercy petition, then it may be a different story; but in its absence, it cannot be said to be incumbent upon the Government to ascertain whether the age on record was correct or not. Therefore, this contention must be rejected. We also note that a second mercy petition dated 24.05.2014 has already been moved in this regard.

119. Now we proceed to analyse the submission of Dr.Chaudhary in respect of extraneous circumstances. The facts portray a grim picture. During the course of the hearing, we had been taken through the various inputs received from various public functionaries and how they were under Rule 775 of the Jail Manual. The opening of Rule 775 reads as under: “नियम 775. मृत्यु दण्ड प्राप्त दण्ण्डत कै ददयों से भिन्ि अन्य कै ददयों द्वारा दी गई दया याचिकाओं पर काययवाही करिे के भऱए अिुदेश- मृत्यु दण्ड प्राप्त दण्ण्डत कै ददयों से भिन्न अन्य कै ददयों द्वारा दया के भऱए दी गई प्रत्येक याचिका जेऱ अधीऺक द्वारा सम्बंचधत ण्जऱा मण्जस्ट्रेट के माध्यम से सरकार के आदेशाथथ अग्रेषषत की जायेगी। …” 120. The translated version reads as: “775. Instructions for dealing with petition for mercy from prisoners other than condemned prisoners.- (1) Every petition for mercy from prisoners other than condemned prisoners shall be forwarded by the Jail Superintendent through the District Magistrate concerned, for the orders of the Government. …” (Emphasis Supplied) 121. From even a cursory perusal of the same, it is clear that the Rule is inapplicable to mercy petitions received from condemned prisoners. W.P. (Crl) 441/2015 Page 87 of 95 The same is patent from the specific words “मृत्यु दण्ड प्राप्त दण्ण्डत कै ददयों से भिन्न /from prisoners other than condemned prisoners” used therein. The correct rule applicable to mercy petitions from death convicts is Rule 777 of the Jail Manual, the relevant portion of which reads as under: “नियम 777. दया के भऱये याचिका- (1) मृत्यु दण्डादेश के अधीन दण्ण्डत व्यण्तत ने यदद ऩहऱे से ही दया के भऱए याचिका प्रस्ट्तुत न की हो, तो उसे दया के भऱये याचिका तैयार करने और प्रस्ट्तुत करने के भऱये उस तारीख को, ण्जसको कक जेऱ अधीऺक उसे यह सूचित करे कक उच्ितम न्यायऱय ने उसकी अऩीऱ खाररज कर दी है या उच्ितम न्यायऱय को अऩीऱ करने की षववेश इजाजत के (S.L.P.) भऱये उसके द्वारा प्रस्ट्तुत ककया गया आवेदन-ऩत्र ननरस्ट्त कर ददया गया है ऩश्िात् उस तारीख को अऩवण्जथत करते हुए सात ददन का समय अनुऻात ककया जायगा।” 122. The translated version is under: “777. Petition for mercy.- (1) A convict under sentence of death shall be allowed if he has not already submitted a petition for mercy for the preparation and submission of a petition for mercy 7 days after and exclusive of the date on which the Superintendent of jail informs him of the dismissal by the Supreme Court of his appeal or of his application for special leave to appeal to the Supreme Court;” (Emphasis Supplied) 123. From the aforegoing, it is clear that the applicable rule was Rule 777 of the Jail Manual and not Rule 775. Noticing the discrepancy, this Court by order dated 21.05.2015 had directed the respondent no.2 to file an affidavit meeting “the allegation in the rejoinder affidavit that the mercy petition filed by the petitioner was examined under Rule 775 W.P. (Crl) 441/2015 Page 88 of 95 which relates to premature release.” The affidavit has been filed stating that the same is a mere „oversight‟ and that the mercy petition “was never treated as a petition for premature release under Rule 775.” 124. We have gone through record, it bears out that all the inputs received were indeed under Rule 775. Further, the same are in relation of समय ऩूवथ मुण्तत/pre-mature release and not commutation of sentence. It is clear that the same cannot be said to be an oversight. What the District Magistrate, Police Superintendent and the Jail Superintendent have exercised their mind upon is as to the suitability of the petitioner for pre-mature release and not commutation of death sentence.

125. The considerations bearing in mind in respect of the two are different and operate on different planes. When the death sentence of a convict is commuted to one of life, he continues to be a prisoner lodged in prison but only that the hangman no longer waits for him. For pre- mature release, the germane considerations would be qualitatively different. In the former, it inter alia may be seen whether the convict has reformed, repented to his crime, his presence in the prison would pose a threat to the prison population or the guards. While deciding the latter, it would have to be seen whether the convict is safe to be introduced back into the society, his recidivism, etc. Generally speaking, an authority which recommends pre-mature release would also recommend commutation; but that may not be the case other way around. Thus, the inputs given by the District Magistrate and the Police Superintendent were wholly extraneous for deciding the mercy petition. While the whole decision of the Governor primarily rests W.P. (Crl) 441/2015 Page 89 of 95 upon these inputs to the exclusion of the recommendation of the Jail Superintendent.

126. While analysing the original records, it came to light that even the note prepared for the Governor was under the impression that the petitioner had sought pre-mature release. The final note for the Governor reads as under: “ववषय:— मृत्यु दंड से दण्ण्डत बंदी सोिू सरदार वपता ज्ञािी भसंह ववश्वकमाय का नियम 775 के अंतगतय दया याचिका प्रकरण। —00— पूवय पृष्ठ से:— कृ ऩया नस्ट्ती ऩर व्यवण्स्ट्थत संऺेषऩका का अवऱोकन करने का कष्ट करें। प्रकरण में प्रशासकीय अनुमोदन प्राप्त है (ऩृष्ठ-2/एन/ )। प्रकरण में ऩुभऱस अधीऺक एवं ण्जऱा दंडाचधकारी एवं षवचध षविाग द्वारा समय ऩूवथ मुण्तत की अनुशंसा नहीं की गयी है, अतएव प्रशासकीय षविाग द्वारा िी बंदी को समय ऩूवथ मुण्तत की अनुशंसा नहीं की जाती है। िारत के संषवधान के अनुच्छेद-161 के तहत दया याचिका प्रकरण में अंनतम ननणथय माननीय राजऩाऱ महोदय द्वारा भऱया जाना है। अतः प्रस्ट्तुत प्रकरण में माननीय राजऩाऱ महोदय के आदेश प्राप्त करने हेतु नस्ट्ती प्रस्ट्तुत है। Sd./- 1/4/13 (एन.के .असवाऱ) प्रमुख सचिव, गृह (जेऱ) Sd./

4.13 (सुननऱ कु मार) मुख्य सचिव माननीय मुख्यमंत्रीजी W.P. (Crl) 441/2015 Page 90 of 95 माननीय राजऩाऱ महोदय मा. मुख्य मंत्री जी Sd./

4 शासन के मत से सहमत Sd./-
Sd./- 10.4” 127. We have got the note translated, which is as under: “Subect:— Mercy petition of condemned prisoner Sonu Sardar son of Gyani Singh Vishvakarm under Rule 775. From previous page:— —00— Kindly peruse the brief prepared on the proposal. The proposal has received administrative approval (page 2/N/ ). The Superintendent of Police and District Magistrate have not recommended the pre-mature release of the prisoner, therefore the administrative department has also not recommended the pre-mature release of the prisoner. Under Article 161 of the Constitution of India the final decision upon a mercy petition is to be taken by the Honourable Governor. Thus, the proposal for the orders of the Hon. Governor is submitted. Chief Secretary Sd./- 1/4/13 (N.K.Aswal) Principal Secretary – Home(Jail) Sd./

4.13 (Sunil Kumar) Honourable Chief Minister W.P. (Crl) 441/2015 Page 91 of 95 Sd./

4 Honourable Governor Agree with the decision of the Government Sd./-
Hon. Chief Minister Sd./- 10.4” 128. What was put up before the Governor was that the Government disfavoured pre-mature release and not commutation. Though the subject line mentions that the petition is from a condemned prisoner, but the whole body pertains to pre-mature release and what the Government and consequently, the Governor had rejected was also pre-mature release. This note had seriously prejudiced the capacity of the Governor for coming to a proper decision, thus vitiating it. CONCLUSION129 Since our opinion is quite verbose, we deem it appropriate to concretise our conclusions hereunder lest the same remain vague:

129. 1 There is an unexplained delay of 1 year 4 months and 13 days , which though unexplained is not unreasonable nor is inordinate to be a supervening circumstance vitiating the decisions of the Governor and the President. 129.2 Between the period 14.09.2011 to 20.10.2014 the petitioner was kept in illegal solitary confinement in absolute disregard of the judgment of the Supreme Court in Sunil Batra (Supra). 129.3 The relevant considerations of the mitigating circumstances, recommendation of the jail superintendent and the young age of the W.P. (Crl) 441/2015 Page 92 of 95 petitioner were not placed before the Governor depriving him of the opportunity to exercise his power in a fair and just manner. 129.4 The mercy petition was processed in an extremely cavalier and casual fashion by the State Government at all stages, right upto placing the note for the Governor. It was all along treated as a petition seeking pre-mature release under an inapplicable rule of the Jail Manual. The Governor was informed that the petition is for pre-mature release and not commutation of sentence. 129.5 The inputs received from the Superintendent of Police and the District Magistrate were extraneous considerations taken into account by the Governor. Even the relevant input of the Jail Superintendent was under the incorrect rule for the wrong purpose, which was wholly ignored by the State Government and relied upon by the Union Government.

130. Therefore, it is clear that the combined effect of the supervening circumstance and the ignorance of relevant consideration as well as consideration of extraneous material has vitiated the decisions.

131. At this juncture, we are posed with the question whether the case should be remanded back to the Constitutional authorities for fresh orders or the sentence of the petitioner be commuted. Ordinarily, when relevant considerations have been kept out or extraneous material have crept in, the matter is remanded back. However, we have also come to the finding that the petitioner was kept in solitary confinement for over three years. In Shatrughan Chauhan (Supra), it has been held that in cases of supervening circumstance, Article 21 of the Constitution has been violated and the court being the enforcer W.P. (Crl) 441/2015 Page 93 of 95 of the fundamental rights must quash the orders commuting the sentence. The relevant portion reads as under: “50. …The concept of supervening events emerged from the jurisprudence set out in Vatheeswaran and Triveniben. The word ―judicial review‖ is not even mentioned in these judgments and the death sentences have been commuted purely on the basis of supervening events such as delay. Under the ground of supervening events, when Article 21 is held to be violated, it is not a question of judicial review but of protection of fundamental rights and the courts give substantial relief not merely procedural protection. The question of violation of Article 21, its effects and the appropriate relief is the domain of this Court. There is no question of remanding the matter for consideration because this Court is the custodian and enforcer of fundamental rights and the final interpreter of the Constitution. Further, this Court is best equipped to adjudicate the content of those rights and their requirements in a particular fact situation. This Court has always granted relief for violation of fundamental rights and has never remanded the matter. For example, in cases of preventive detention, violation of free speech, externment, refusal of passport, etc. the impugned action is quashed, declared illegal and violative of Article 21, but never remanded. It would not be appropriate to say at this point that this Court should not give relief for the violation of Article 21.” (Emphasis Supplied) 132. Thus, we find that the supervening circumstance of solitary confinement coupled with the non-placement of relevant considerations and considering of extraneous considerations has vitiated the decision of the Governor and the President. Further, the incarceration of the petitioner in solitary confinement without any judicial order has run awry of the Fundamental Rights and this Court, W.P. (Crl) 441/2015 Page 94 of 95 being the sentinel of the Constitution, is bound to intervene and give relief to the petitioner.

133. We, therefore, following V. Sriharan alias Murugan (Supra), commute the sentence imposed upon the petitioner and substitute it to a sentence of imprisonment for life in place of death sentence awarded to the petitioner. Life imprisonment means end of one‟s life, subject to any remission granted by the appropriate Government under Section 432 of the Code of Criminal Procedure; which is, in turn, subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code.

134. The writ petition and all pending applications are disposed of.

135. We may also add that there are numerous discrepancies and falsities in the affidavits filed by the respondent no.2/State of Chhattisgarh such as the ones highlighted in the table contained in paragraph 41. Despite the same, we have proceeded to decide the matter in the interests of justice. At the same time, such practice is deprecated and should be taken note of by the higher authorities. G. S. SISTANI, J.

VINOD GOEL, J.

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