# 1 S.C.R. 609 SHATRUGHAN CHAUHAN & ANR v. UNION OF INDIA & ORS

- **Citation:** [2014] 1 S.C.R. 609
- **Court:** Supreme Court of India
- **Decided:** 2014-01-21
- **Bench:** P. Sathasivam, RANJAN GOGOi, Shiva Kirti Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-s-c-r-609-shatrughan-chauhan-anr-v-union-of-india-ors-29772
- **Pages:** 138

## Headnote

Mercy jurisprudence:
Constitution of India, 1950:
Articles 721161 - Commutation of death sentence to life
imprisonment - Effect of supervening circumstances - Held:
A
B
c
Undue long delay in execution of sentence of death entitle D
the condemned prisoner to approach Supreme Court u/Article
32 -
However, Supreme Court will only examine the
circumstances surrounding the delay that has occurred and
· those that have ensued after sentence was finally confirmed
by the judicial process - Supreme Court would not reopen the
conclusion already reached but may consider the question E
of inordinate delay - Delay .caused by circumstances beyond
the prisoners' control mandates commutation of death
sentence - Unexplained delay is a ground for commutation
of death sentence into life imprisonment and the said
supervening circumstance is applicable to all types of cases F
including the offences under TADA - The only aspect the
courts have to satisfy is that the delay was unreasonable and
unexplained or inordinate at the hands of the executive -
Insanity is also . one of the supervening circumstances that
warrant for commutation of death sentence - In the instant writ G
petitions, in the light of principles and facts of each case, the
death sentence of all the petitioners is commuted into
imprisonment for life - Code of Criminal Procedure, ·1973 -
Prisons Act, 1894.
609
H
610
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A
Articles 721161 - Nature of power guaranteed under -
Held: The power vested in the President u!Article 72 and the
Governor u/Article 161 is a Constitutional duty - It is neither
a matter of grace nor a matter of privilege but is an important
constitutional responsibility reposed by the people in the
B highest authority - The power of pardon is essentially an
executive action, which needs to be exercised in the aid of
justice and not in defiance of it - The said power is to be
exercised on the aid and advice of the Council of Ministers -
Also, Articles 721161 of the Constitution entail remedy to all
c the convicts and is not limited to only death sentence cases.
Articles 721161 - Limited Judicial Review of the executive
orders u/Article 721161 - Held: Executive orders u/Articles 721
161 should be subject to limited judicial review based on the
rationale that the power u/Articles 721161 is per se above
D judicial review, however, the manner of exercise of power is
certainly subject to judicial review - Administrative law.
E
Articles 721161 - Processing the mercy petition -
Procedure adopted u!Articles 721161- Discussed.
Articles 721161 - Mercy petition - Limitation period for
adjudication - Held: 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
F 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 - Limitation.
G
Articles 721161 - Mercy petition - Procedural Lapses -
Held: Ministry of Home Affairs, Government of India has
detailed procedure regarding handling of petitions for mercy
in death sentence cases - The Rules make it clear that at
H every stage the matter has to be expedited and there cannot
SHATRUGHAN CHAUHAN v. UNION OF INDIA
611
be any delay at the instance of the officers, particularly, the A
Superintendent of Jail, in view of the language used therein
as "at once" - Apart from these 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 passif]g appropriate orders by the s
President of India .
.Article 21 - Right to life - Rights of accused vis-a-vis right
of victim - Held: While Articl

## Text

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(2014] 1 S.C.R. 609
SHATRUGHAN CHAUHAN & ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (Criminal) No. 55 of 2013)
JANUARY 21, 2014 .
[P. SATHASIVAM, CJI, RANJAN GOGOi AND
SHIVA KIRTI SINGH, JJ.]
Mercy jurisprudence:
Constitution of India, 1950:
Articles 721161 - Commutation of death sentence to life
imprisonment - Effect of supervening circumstances - Held:
A
B
c
Undue long delay in execution of sentence of death entitle D
the condemned prisoner to approach Supreme Court u/Article
32 -
However, Supreme Court will only examine the
circumstances surrounding the delay that has occurred and
· those that have ensued after sentence was finally confirmed
by the judicial process - Supreme Court would not reopen the
conclusion already reached but may consider the question E
of inordinate delay - Delay .caused by circumstances beyond
the prisoners' control mandates commutation of death
sentence - Unexplained delay is a ground for commutation
of death sentence into life imprisonment and the said
supervening circumstance is applicable to all types of cases F
including the offences under TADA - The only aspect the
courts have to satisfy is that the delay was unreasonable and
unexplained or inordinate at the hands of the executive -
Insanity is also . one of the supervening circumstances that
warrant for commutation of death sentence - In the instant writ G
petitions, in the light of principles and facts of each case, the
death sentence of all the petitioners is commuted into
imprisonment for life - Code of Criminal Procedure, ·1973 -
Prisons Act, 1894.
609
H
610
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A
Articles 721161 - Nature of power guaranteed under -
Held: The power vested in the President u!Article 72 and the
Governor u/Article 161 is a Constitutional duty - It is neither
a matter of grace nor a matter of privilege but is an important
constitutional responsibility reposed by the people in the
B highest authority - The power of pardon is essentially an
executive action, which needs to be exercised in the aid of
justice and not in defiance of it - The said power is to be
exercised on the aid and advice of the Council of Ministers -
Also, Articles 721161 of the Constitution entail remedy to all
c the convicts and is not limited to only death sentence cases.
Articles 721161 - Limited Judicial Review of the executive
orders u/Article 721161 - Held: Executive orders u/Articles 721
161 should be subject to limited judicial review based on the
rationale that the power u/Articles 721161 is per se above
D judicial review, however, the manner of exercise of power is
certainly subject to judicial review - Administrative law.
E
Articles 721161 - Processing the mercy petition -
Procedure adopted u!Articles 721161- Discussed.
Articles 721161 - Mercy petition - Limitation period for
adjudication - Held: 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
F 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 - Limitation.
G
Articles 721161 - Mercy petition - Procedural Lapses -
Held: Ministry of Home Affairs, Government of India has
detailed procedure regarding handling of petitions for mercy
in death sentence cases - The Rules make it clear that at
H every stage the matter has to be expedited and there cannot
SHATRUGHAN CHAUHAN v. UNION OF INDIA
611
be any delay at the instance of the officers, particularly, the A
Superintendent of Jail, in view of the language used therein
as "at once" - Apart from these 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 passif]g appropriate orders by the s
President of India .
.Article 21 - Right to life - Rights of accused vis-a-vis right
of victim - Held: While Article 21 is the paramount principle
on which rights of the convicts are based, it must be
considered along with the rights of the victims or the C
deceased's family as also societal consideration since these
elements form part of the sentencing process as well.
Article 32 - Writ petition by death convict asserting
violation of Article 21 on account of undue, unreasonable and D
prolonged delay in disposal of his mercy petition - Held:
When Article 21 is violated, it is not a question of judicial
review but of protection of fundamental rights and courts give
substantial relief not merely procedural protection - The
question of violation of Article 21, its effects and the E
appropriate relief is the domain of Supreme Court - There is
no question of remanding the matter for consideration
because Supreme Court is the custodian and enforcer of
fundamental rights and the final interpreter of the Constitution
- Further, Article 21 is the paramount principle on which rights
F
of the convict are based, this must be considered along with
the rights of the victims or the deceased's family as also
societal consideration.
Guidelines:
Mercy petitions - Guidelines for effective governing of
the procedure of filing mercy petitions and for the cause of
the death convicts - Framed.
Code of Criminal Procedure, 1973:
G
H
612
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A
s.354(5) - Death sentence - Execution by hanging -
Held: The method of hanging prescribed by s.354(5) is not
violative of the guaranteed right ul Article 21 of the Constitution
on the basis of scientific evidence and opinions of eminent
medical persons which assured that hanging is the least
B painful way of ending the life.
Prison Act, 1894:
s.30(2) - Solitary confinement- In case of prisoner under
sentence of death - Held: Solitary confinement, even if
C mollified and modified marginally, is not sanctioned by s.30
of the Act for prisoners 'under sentence of death' - The crucial
holding uls.30(2) is that a person is not 'under sentence of
death', even ifthe Sessions Court has sentenced him to death
subject to confirmation by the High Court - He is not 'under
D sentence of death' even if the High Court imposes, by
confirmation or fresh appellate infliction, death penalty, so
Jong as an appeal to the Supreme Court is likely to be or has
been moved or is pending - Even if Supreme Court has
awarded capital sentence, s.30 does not cover him so long
E as his petition for mercy to the Governor and/or to the
President permitted by the Constitution, has not been
disposed of - Thus, only after rejection of mercy petition by
the Governor and the President, and on further application, if
there is no stay of execution by the authorities, the person is
F
under sentence of death - During that interregnum, he attracts
the custodial segregation specified in s.30(2), subject to the
ameliorative meaning assigned to the provision - To be
'under sentence of death' means 'to be under a finally
executable death sentence'.
G
The instant writ petitions, under Article 32 of the
H
Constitution of India were filed either by the convicts,
who were awarded death sentence or by their family
members or by public-spirited bodies like People's Union
for Democratic Rights (PUDR) based on the rejection of
. SHATRUGHAN CHAUHAN v. UNION OF INDIA
613
mercy petitions by the Governor and the President of A
India. In these petitions, the petitioners sought relief
against alleged infringement of certain fundamental rights·
on account of failure on the part of the executive to
dispose of the mercy petitions filed under Article 72/161
of the Constitution within a reasonable time. It was the
B
claim of the petitioners that the impugned executive
orders of rejection of mercy petitions against 15 accused
persons were passed without considering the
supervening events which were crucial for deciding the
same.
Disposing of the writ petitions, the Court
HELD:
1. Maintainability of the Petitions .
The stand of the petitioners was that the exercise of
the constitutional power vested in the executive specified
under Article 72/161 has violated the fundamental rights
c
D
of the petitioners. This Court, as in past, entertained the
petitions of the given kind and issued appropriate orders. E
Accordingly, the·petitions are held maintainable. [Para 9]
[644-G-H; 645-A-B]
T. V. Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC
68: 1983 (2) SCR 348, Sher Singh and Ors. vs. State of F
Punjab (1983) 2 SCC 344: 1983 AIR 465; Triveniben vs.
State of Gujarat (1988) 4 SCC 574: 1989 AIR 142; R.D
Shetty vs. International Airport Authority (1979) 3 SCC 489:
1979 (3) SCR1014 - relied on.
Minerva Mills Ltd. and Ors. vs. Union of India and Ors.
G
(1980) 2 SCC 625; A.R Antu/ay vs. Union of India (1988) 2
SCC 602: 1988 (1) Suppl. SCR 1 - referred to.
2. Nature of power guaranteed under Article 72/161 of the
Constitution
H
614
SUPREME COURT REPORTS
[2014) 1 S.C.R.
A
Both Articles 72 and 161 repose the power of the
people in the highest dignitaries, i.e., the President or the
Governor of a State, as the case may be, and there are
no words of limitation indicated in either of the two
Articles. The President or the Governor, as the case may
B be, in exercise of power under Article 721161 respectively,
may examine the evidence afresh and this exercise of
power is clearly independent of the judiciary. Article 72/
161 of the Constitution entail remedy to all the convicts
and is not limited to only death sentence cases and must
c be understood accordingly. It contains the power of
reprieve, remission, commutation and pardon for all
offences, though death sentence cases invoke the
strongest sentiment since it is the only sentence that
cannot be undone once it is executed. The power vested
0
in the President under Article 72 and the Governor under
Article 161 of the Constitution is a Constitutional duty. As
a result, it is neither a matter of grace nor a matter of
privilege but is an important constitutional responsibility
reposed by the people in the highest authority. The
E power of pardon is essentially an executive action, which
needs to be exercised in the aid of justice and not in
defiance of it. Further, it is well settled that the power
under Article 72/161 of the Constitution of India is to be
exercised on the aid and advice of the Council of
Ministers. [Paras 12, 14, 17] [649-D-E; 650-D-E; 652-C-E]
F
Kehar Singh vs. Union of India & Anr., (1989) 1 SCC
204: 1988 (3) Suppl. SCR 1102; Epuro Sudhakar & Anr. vs.
Govt. of A.P. & Ors., (2006) 8 SCC 161: 2006 (7) Suppl.
SCR 81; Kuljeet Singh vs. Lt. Governor (1982) 1 SCC 417:
G 1982 (3) SCR 58- relied on.
H
Biddle vs. Perovoch 274 US 480 - referred to.
3. Limited Judicial Review of the executive orders under
Article 721161
SHATRUGHAN CHAUHAN v. UNION OF INDI(\
615
3.1. The power of the executive to grant pardon A
under Article 72/161 is a Constitutional power and this
Court, on numerous occasions, has declined to frame
guidelines for the e~ercise of power under the said
Articles for two reasons. Firstly, it is a settled proposition
that there is always a presumption that the constitutional B
authority acts with application of mind. Secondly, this
Court, over the span of years, unanimously took the view
that considering the nature of power enshrined in Article
72/161, it is unnecessary to spell out specific guidelines.
Nevertheless, the executive orders under Article 72/161
C
should be subject to limited judicial review based on the
rationale that the power under Article 72/161 is per se
above judicial review but the manner of exercise of power
is certainly subject to judicial review. [paras 18, 19) [652F-H; 654-B-C]
Bikas Chatterjee vs. UO/ (2004) 7 SCC 634: 1998 (2)
SCR 206; Swaran Singh vs. State of U.P AIR 1998 SC
2026; Satpal and Anr. vs. State of Haryana and Ors. AIR 2000
SC 1702: 2000 (3) SCR 858 - relied on.
D
E
3.2. Though the contours of power under Article 72/
161 have not been defined, this Court, in *Narayan Dutt
case has held that the exercise of power is subject to
challenge c;m the following grounds: If the Governor had
been found to have exercised the power himself without F
being advised by the government; if the Governor
transgressed his jurisdiction in exercising the said
power; if the Governor had passed the order without
applying his mind; the order of the Governor was ma/a
fide; or The order of the Governor was passed on some G
extraneous considerations. [Para 20) [654-E-H]
*Narayan Dutt vs. State of Punjab (2011) 4 SCC 353:
2011 (4) SCR 983 - relied on.
3.3. The President/Governor is not bound to hear a H
616
SUPREME COURT REPORTS
[2014] 1 S.C.R.
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
B review to ensure that the constitutional authorities
consider all the relevant materials before arriving at a
conclusion. The legal basis for taking supervening
circumstances into account for deciding mercy petition
is that Article 21 inheres a right in every prisoner till his
c last breath and this Court has to protect that right even
if the noose is being tied on the condemned prisoner's
neck. [Paras 21, 22] [656-D-G]
D
Jagdish vs. State of Madhya Pradesh (2009) 9 SCC
495: 2009 (14) SCR 727 - relied on.
Effect of Supervening Circumstances
The petitioners asserted the following events as the
supervening circumstances, for commutation of death
sentence to life imprisonment. Delay, Insanity, Solitary
E Confinement, Judgments declared per incuriam,
Procedural Lapses. [Para 24] [657-B-D]
4.1.1. (i) Delay
The following is the procedure adopted under Article
F 72/161 for processing the mercy petition. The death row
convicts invariably approach the Governor under Article
161 of the Constitution of India with a mercy petition after
this Court finally decide the matter. During the pendency
of the mercy petition, the execution of death sentence is
G stayed. As per the procedure, once the mercy petition is
rejected by the Governor, the convict prefers mercy
petition to the President. Thereafter, the mercy petition
received in President's office is forwarded to the Ministry
of Home Affairs. Normally, the mercy petition consists of
H one or two pages giving grounds for mercy. To examine
SHATRUGHAN CHAUHAN v. UNION OF INDIA
617
the mercy petition so received and to arrive at a A
conclusion, the documents like copy of the judgments of
the trial Court, the High Court and the Supreme Court are
requested from the State Government. The other
documents required include details of the decision taken
B
by the Governor under Article 161 of the Constitution, the
recommendations of the State Government in regard to
grant of mercy petition, copy of the records of the case,
nominal role of the convict, health status of the prisoner
and other related documents. All these details are
gathered from the State/Prison authorities after the c
receipt of the mercy petition and, according to the Union
of India, it takes a lot of time and involve protracted
correspondence with prison authorities and State
Government. It is also claimed by the Union of India that
these documents are then extensively examined and in
0
some sensitive cases, various pros and cons are weighed
to arrive at a decision. Sometimes, person or at their
instance some of their relatives, file mercy petitions
repeatedly which cause undue delay. In other words,
according to the Union of India, the time taken in
examination of mercy petitions may depend upon·the
nature of the case and the scope of inquiry to be made.
It may also depend upon the number of mercy petitions
submitted by or on behalf of the accused. [Paras 26, 27]
[657-F-H; 658-A-F]
4.1.2. The decision taken by the President under
Article 72 is communicated to the State Government/
Union Territory concerned and to the prisoner through
State Government/Union Territory. As per List II Entry 4
E
F
of the Seventh Schedule to the Constitution of India,
G
"Prisons and persons detained therein" is a State subject.
Therefore, all steps for execution of capital punishment
including informing the convict and his/her family, etc. are
required to be taken care of by the concerned State
Governments/Union Territories in accordance with their
H
618
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A jail manual/rules etc. [Para 29] [659-B-D]
4.1.3. The right to life is the most fundamental of all
rights. The right to life, as guaranteed under Article 21 of the
Constitution of India, provides that no person shall be
8 deprived of his life and liberty except in accordance with the
procedure established by law. While Article 21 is the
paramount principle on which rights of the convicts are
based, it must be considered along with the rights of the
victims or the deceased's family as also societal
consideration since these elements form part of the
C sentencing process as well. [Paras 31, 32] [659-G-H; 660-E]
D
E
Smt. Triveniben vs. State of Gujarat (1988) 4 SCC 574:
1989 AIR 142; Smt. Triveniben vs. State of Gujarat, (1989)
1 sec 678: 1989 (1) SCR 509 - relied on.
State of West Bengal vs. Committee for Democratic
Rights, West Bengal, (2010) 3 SCC 571: 2010 (2) SCR 979;
Ediga Anamma vs. State of A.P., 1974(4) SCC 443: 1974 (3)
SCR 329 - referred to.
Earl Pratt vs. AG for Jamaica [1994] 2 AC 1 - Privy
Council- referred to.
4.1.4. 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
F examine the circumstances surrounding the delay that
has occurred and those that have ensued after 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
G whether the execution of sentence should be carried out
or should be altered into imprisonment for life. Keeping
a convict in suspense while consideration of his mercy
petition by the President for many years is certainly an
agony for him/her. It creates adverse physical conditions
H and psychological stresses on the convict under
· SHATRUGHAN CHAUHAN v. UNION OF INDIA
619
sentence of death. Indisputably, this Court, while A
considering the rejection of the clemency petition by the
President, under Article 32 read with Article 21 of the
Constitution, cannot excuse the agonizing delay caused
to the convict only on the basis of the gravity of the
crime •. [Paras 38, 39] [664-E-H; 665-A]
8
4.1.5. India has been a signatory to the Universal
Declaration of Human Rights, 1948 as well as to the
United Nations Covenant on Civil and Political Rights,
1966. Both these conventions contain provisions
outlawing cruel and degrading treatment and/or C
punishment. Pursuant to the judgment of this Court in
**Vishaka, international covenants to which India is a
party are a part of domestic law unless they are contrary
to a specific law in force. [Para 40] [665-B-C]
**Vishaka vs. State of Rajasthan, (1997) 6 SCC 241:
1997 (3) Suppl. SCR 404 - relied on.
D
Earl Pratt vs. AG for Jamaica [1994] 2 AC 1 - Privy
Council; Catholic Commission for Justice & Peace in
E
Zimbabwe vs. Attorney General, 1993 (4) S.A. 239 - Supreme
Court of Zimbabwe; Soering vs. United Kingdom [App. No.
14038/88, 11 Eur. H.R. Rep. 439 (1989)] - European Court
of Human Rights; Attorney General vs. Susan Kigula,
Constitutipnal Appeal No. 3 of 2006 - ·Supreme Court of
Uganda; Herman Mejia and Nicholas Guevara vs. Attorney
F
General, A.O. 2000 Action No. 296 - Supreme Court of
Belize - referred to.
4.1.6. It is clear that after the completion of the judicial
process, if the convict files a mercy petition to the G
Governor/President, it is incumbenl-on the authorities to
dispose of the same expeditiously. Though-ho 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
H
620
SUPREME COURT REPORTS
[2014) 1 S.C.R.
A filed In the court, preparation of the note for approval of
the Minister concerned, and the ultimate decision of the
constitutional authorities. Accordingly, if there is undue,
unexplained amd inordinate delay in execution due to
pendency of mercy petitions or the executive as well as
8 the constitutional authorities have failed to take note of/
consider the relevant aspects, this Court Is well within its
powers under Article 32 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
C of the accused himself. To this extent, the jurisprudence
has developed In the light of the mandate given in (>:ur
-
'
Constitution as well as various Universal Declarat!J>~
and directions issued by the United Nations. [Par• 41,
D 42) [665-H; 666-A-E]
4.1.7. The procedure prescribed by law, which
deprives a person of his life and liberty must be just, fair
and reasonable and such procedure mandates humane
conditions of detention preventive or punitive. In this line,
E although the petitioners were sentenced to death based
on the procedure established by law, the inexplicable
delay on account of executive is unexcusable. Since it
is well established that Article 21 of the Constitution does
not end with the pronouncement of sentence but
F extends to the stage of execution of that sentence, as
already asserted, prolonged delay in execution of
sentence of death has a dehumanizing effect on the
accused. Delay caused by circumstances beyond the
prisoners' control mandates commutation of death
G sentence. 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 courts give substantial relief not merely procedural
protection. The question of violation of Article 21, its
H effects and the appropriate relief Is the domain of this
SHATRUGHAN CHAUHAN v. UNION OF INDIA
621
Court. There is no question of remanding the matter for A
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 B
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 c
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. [Paras 43, 44] [666-F-H; 667-F-H; 668-A-B]
Maneka Gandhi vs. Union of India (1978) 1 SCC 248:
1978 (2) SCR 621; Noel Noel Riley vs. Attorney General, D
(1982) Crl.Law Review 679 - referred to.
4.1.8. Obviously, the mercy petitions disposed of
from 1989 to 1997 witnessed the impact of the
observations in the disposal of mercy petitions. Since the E
average time taken for deciding the mercy petitions
during this period was brought down to an average of 5
months from 4 years thereby paying due regard to the
observations made in the decisions of this Court, but
unfortunately, now the history seems to be repeating
F
itself as now the delay of maximum 12 years is seen in
disposing of the mercy petitions under Article 72/161 of
the Constitution. The mercy petitions under Article 72/161
can be disposed of at a much faster pace than what is
adopted now, if the due procedure prescribed by law is G
followed in verbatim. Though guidelines to define the
contours of the power under Article 72/161 cannot be laid
down, however, the Union Government, considering the
nature of the power, set out certain criteria in the form of
circular as under for deciding the mercy petitions. H
622
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A Personality of the accused (such as age, sex or mental
deficiency) or circumstances of the case (such as
provocation or similar justification); Cases in which the
appellate Court expressed doubt as to the reliability of
evidence but has nevertheless decided on conviction;
B Cases where it is alleged that fresh evidence is obtainable
mainly with a view to see whether fresh enquiry is
justified; Where the High Court on appeal reversed
acquittal or on an appeal enhanced the sentence; Is there
any difference of opinion in the Bench of High Court
c Judges necessitating reference to a larger Bench;
Consideration of evidence in fixation of responsibility in
gang murder case; Long delays in investigation and trial
etc. These guidelines and the scope of the power set out
above make it clear that it is an extraordinary power not
0
limited by judicial determination of the case and is not to
be exercised lightly or as a matter of course. In view of
the jurisprudential development with regard to delay in
execution, another criteria may be added so as to require
consideration of the delay that may have occurred in
disposal of a mercy petition. In this way, the
E constitutional authorities are made aware of the delay
caused at their end which aspect has to be conside1ed
while arriving at a decision in the mercy petition. The
obligation to do so can also be read from the fact that,
as observed by the Constitution Bench in Triveniben,
F delays In the judicial process are accounted tor in the
final verdict of the Court terminating the judicial exercise.
[Paras 46, 47, 48, 49] [669-B-H; 670-A-F]
4.1.10. Another vital aspect is that, Article 21 is the
G paramount principle on which rights of the convict are
based, this must be considered along with the rights of
the victims or the deceased's family as also societal
consideration since these elements form part of the
sentencing process as well. It is the stand of the
H respondents that the commutation of sentence of death
SHATRUGHAN CHAUHAN v. UNION OF INDIA
623
based on delay alone will be against the victim's interest.
A
It is true that the question of sentence always poses a
complex problem, which requires a working compromise
between the competing views based on reformative,
deterrent and retributive theories of punishments. As a
consequence, a large number of factors fall for
B
consideration in determining the appropriate sentence.
[Paras 50, 51] [670-G-H; ~71-A-B]
Ram Narain vs. State of Uttar Pradesh (1973) 2 SCC 86
- relied on.
4.1.11. The aims of punishment are now considered
to be retribution, justice, deterrence, reformation and
protection and modern sentencing policy reflects a
combination of several or all of these aims. The main aim
c
of punishment in judicial thought, however, is still the 0
protection of society and the other objects frequently
receive only secondary consideration when sentences
are being decided. All these aspects were emphatically
considered by this Court while pronouncing the final
verdict_ against the petitioners thereby upholding the
sentence of death imposed by the High Court.
E
Nevertheless, the same accused (petitioners) were before
this court under Article 32 petition seeking commutation
of sentence on the basis of undue delay caused in
execution of their levied death sentence. There is
distinction under both circumstances. Under the former
F
scenario, the petitioners herein were the persons who
were accused of the offence wherein the sentence of
'death was imposed but in later scenario, the petitioners
herein approached this Court as a victim of violation of
guaranteed fundamental rights under the Constitution
G
seeking commutation of sentence. This distinction must
be considered and appreciated. [Paras 52, 53] [671-E-F;
672-A-E]
Ha/sbury's Laws of-England; (4th Edition: Vol. II: para
482) - referred to.
H
624
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A Rationality of Distinguishing between Indian Penal Code,
1860 And Terrorist and Disruptive Activities (Prevention)
Act Offences for Sentencing Purpose
4.2.1. Only delay which could not have been avoided
8 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
C or some horrible consequences for society caused by the
offence are not relevant after the Constitution Bench
ruled in ***Bachan Singh case 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
D 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
E offence. [Para 57] [673-G-H; 674-A-C]
Devender Pal Singh Bhullar vs. State (NCT) of Delhi
(2013) 6 sec 195 per incuriam
F
***Bachan Singh vs. State of Punjab (1980) 2 SCC 684
- referred to.
4.2.2. It is open to the legislature in its wisdom to
decide by enacting an appropriate law that a certain fixed
period of imprisonment in addition to the sentence of
G death can be imposed in some well defined cases but the
result cannot be accomplished by a judicial decision
alone. The unconstitutionality of this additional
incarceration is itself inexorable and must not be treated
as dispensable through a judicial decision. [Para 58] [674H D-E]
SHATRUGHAN CHAUHAN v. UNION OF INDIA
625
Mahendra Nath Das vs. Union of India and Ors. (2013) A
6 sec 253 - relied on.
4.2.3. Section 303 IPC provides that "no person shall
be deprived of his life or personal liberty except according
to the procedure established by law". Since Section 303 8
IPC excludes judicial discretion, the Constitution Bench
in ****Mithu case has concluded that such a law must
necessarily be stigmatized as arbitrary and oppressive.
rn is further clear that no one should be deprived of
equality contained in Article 14 as also the right conferred C
by Article 21 of the Constitution regarding his life or
personal liberty except according to the procedure
established by law. 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 D
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
that a distinction can be drawn between IPC and non-IPC
offences since the nature of the offence is a relevant E
factor is liable to be rejected at the outset. [Paras 65, 69,
70] [678-D-E; 681-F-H; 682-A-B]
****Mithu vs. State of Punjab (1983) 2 SCC 277: 1983
(2) SCR 690; Sunil Batra vs. Delhi Administration (1978) 4 F
sec 494: 1979 (1) SCR 392 - relied on.
4.3. (ii) Insanity/Mental Illness/Schizophrenia
India is a member of the United Nations and has
ratified the International Covenant on Civil and Political G
Rights (ICCPR). A large number of United Nations
international documents prohibit the execution of death
sentence on an insane person. Clause 3(e) of the
Resolution 2000165 dated 27 .04.2000 of the U.N.
Commiuion on Human Rights titled "The Question of H
626
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A Death Penalty" urges "all States that still maintain the
death pena/ty ... not to impose the death penalty on a
person suffering from any form of mental disorder or to
execute any such person". Similarly, Clause 89 of the
Report of the Special Rapporteur on Extra-Judicial
B Summary or Arbitrary Executions published on
24.12.1996 by the UN Commission on Human Rights
under the caption "Restrictions on the use of death
penalty" states that "the imposition of capital punishment
on mentally retarded or insane persons, pregnant women
c and recent mothers is prohibited". Further, Clause 116
thereof under the caption "Capital punishment" urges
that "Governments that enforce such legislation with
respect to minors and the mentally ill are particularly called
upon to bring their domestic criminal laws into conformity
0
with international legal standards". India too has similar
line of law and rules in the respective State Jail Manuals.
Paras 386 and 387 of the U.P. Jail Manual applicable to
the State of Uttarakhand. Similar provisions are available
in Prison Manuals of other States in India. These
E materials, particularly, the directions of the United Nations
International Conventions, of which India is a party, clearly,
show that insanity/mental illness/schizophrenia is a
crucial supervening circumstance, which should be
considered by this Court in deciding whether in the facts
and circumstances of the case death sentence could be
F commuted to life imprisonment. In addition, after it is
established that the death convict is insane and it is duly
certified by the competent doctor, undoubtedly, Article 21
protects him and such person cannot be executed
without further clarification from the competent authority
G about his mental problems. It is also highlighted by
relying on commentaries from various countries that
civilized countries have not executed death penalty on an
insane person. In view of the well established laws both
at national as well as international sphere, insanity is one
H
SHATRUGHAN CHAUHAN v. UNION OF INDIA
627
of the supervening circumstances that warrants for A
commutation of death sentence to life imprisonment.
[Paras 73, 74, 77, 78, 79] [682-G-H; 683-A; 685-A-C; 686D; 687-A-F]
4.4. (iii) Solitary Confinement
B
The grievance of some of the petitioners was that they
were confined in solitary confinement from the date of
imposition of death sentence by the Sessions Court
which was contrary to the provisions of the Indian Penal
Code, 1860, the Code of Criminal Procedure, 1973, C
Prisons Act and Articles 14, 19 and 21 of the Constitution
and it is certainly a form of torture. However, the·
respective States have outrightly denied having kept any
of the petitioners in solitary confinement in violation of
existing laws. It was submitted that they were kept D
separately from the other prisoners for safety purposes.
In other words, they were kept in statutory segregation
and not per se in solitary confinement. The solitary
confinement, even if mollified and modified marginally, is
not sanctioned by Section 30 of the Prisons Act for E
prisoners 'under sentence of death'. The crucial holding
under Section 30(2) is that a person is not 'under
sentence of death', even if the Sessions Court has
sentenced him to death subject to confirmation by the
High Court. He is not 'under sentence of death' even if F
the High Court imposes, by confirmation or fresh appellate
infliction, death penalty, so long as an appeal to the
Supreme Court is likely to be or has been moved or is
pending. Even if this Court has awarded capital sentence,
it was held that Section 30 does not cover him so long G
as his petition for mercy to the Governor and/or to the
President permitted by the Constitution, has not been
disposed of. Of course, once rejected by the Governor
and the President, and on further application, there is no
stay of execution by the authorities, the person is under
H
628
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A sentence of death. During that interregnum, he attracts
the custodial segregation specified in Section 30(2),
subject to the ameliorative meaning assigned to the
provision. To be 'under sentence of death' means 'to be
under a finally executable death sentence'. [Paras 80, 82]
B [687-G-H; 688-A-B; 692-E-H; 693-A]
c
D
Sunil Batra vs. Delhi Administration and Ors. etc. (1978)
4 SCC 494: 1979 (1) SCR 392 - relied on.
4.5. (iv) Judgments Declared Per lncuriam
The argument that the trial court or the High Court
relied onladverted to certain earlier decision which were
elither doubted or held per incuriam is not relevant. [Paras
85] [693-D-E]
Machhi Singh vs. State of Punjab (1983) 3 SCC 470:
1983 (3) SCR 413; Ravji alias Ramchandra vs. State of
Rajasthan (1996) 2 SCC 175: 1995 (6) Suppl. SCR 195;
Sushi( Murmu vs. State of Jharkhand (2004) 2 SCC 338:
2003 (6) Suppl. SCR 702; Dhananjoy Chatterjee vs. State
E
of WB. (1994) 2 SCC 220: 1994 (1) SCR 37; State of U.P.
vs. Dharmendra Singh (1999) 8 SCC 325: 1999 (3 ) Suppl.
SCR 52; Surja Ram vs. State of Rajasthan (1996) 6 SCC
271: 1996 ( 6 ) Suppl. SCR 783; Swamy Shraddananda
F
(2) vs. State of Karnataka (2008) 13 SCC 767: 2008 (11)
SCR 93; Sangeet and Anr. vs. State of Haryana (2013) 2
SCC 452: 2012 (13) SCR 85; Gurvail Singh vs. State of
Punjab (2013) 2 SCC 713: 2013 (1) SCR 783
- referred
to.
G 4.6. (v) Procedural Lapses
H
4.6.1. Ministry of Home Affairs, Government of India
has detailed procedure regarding handling of petitions
for mercy in death sentence cases. As per the said
procedure, Rule I enables a convict under sentence of
SHATRUGHAN CHAUHAN v. UNION OF INDIA
629
death to submit a petition for mercy within seven days
A
after and exclusive of the day 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. Rule II
prescribes procedure for submission of petitions. As per
B
this Rule, such peUtions shall be addressed to, in the
case of States, to the Governor of the State at the first
instance and thereafter to the President of India and in
the case of Union Territories directly to the President of
India. As soon as mercy petition is received, the c
execution of sentence shall in all cases be postponed
pending receipt of orders on the same. Rule Ill states that
the petition shall in the first instance, in the case of States,
be sent to the State concerned for consideration and
orders of the Governor. If after consideration it is rejected,
0
it shall be forwarded to the Secretary to the Government
of India, Ministry of Home Affairs. If it is decided to
commute the sentence of death, the petition addressed
to the President of India shall be withheld and intimation
to that effect shall be sent to the petitioner. Rule V states
that 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 Lt. 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
E.
Fcase and his or its observations in respect of any of the
grounds urged in the petition. Rule VI mandates that
upon receipt of the orders of the President, an
acknowledgement shall be sent to the Secretary to the G
Government of India, Ministry of Home Affairs,
immediately in the manner prescribed. In the case of
Assam and Andaman and Nicobar Islands, all orders will
be communicated by telegraph and the receipt thereof
shall be acknowledged by telegraph.