India: Death Sentence: Effect Of Delay In Disposal Of Mercy Petition

Hon'ble Apex Court vide its Judgment passed by full bench in matter 'Ajay Kumar Pal Vs. Union of India And Another1' on 12.12.2014 has allowed the Writ Petition (Criminal) No.128 of 2014 with holding that 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 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.

The issue in question, which was considered and decided by Hon'ble Supreme Court in present Writ Petition (Criminal) is: whether delay in execution of death sentence can be a sufficient ground or reason for substituting such sentence by life imprisonment?

The facts in brief which lead the filing of subject Writ Petition are as under:

The petitioner had been awarded death sentence in Sessions Trial No.67 of 2005 by the court of Special Judge, CBI, Ranchi by its judgment and order dated 09.04.2007. The matter reached Jharkhand High Court in Death Reference No.3 of 2007 and also as a result of the appeal preferred by the petitioner. The High Court dismissed the appeal and confirmed the death sentence by its judgment and order dated 28.08.2007. Order dated 28.08.2007 was challenged before Hon'ble Supreme Court vide Criminal Appeal Nos.1295-96 of 2007. Hon'ble Supreme Court concurred with the view taken by the courts below and dismissed the appeals on 16.03.2010. The death sentence imposed upon the petitioner thus stood confirmed on 16.03.2010.

The petitioner, who was in jail all throughout, preferred Mercy Petitions addressed to the President of India as well as to the Governor of Jharkhand on 10.04.2010. The Mercy Petitions were immediately forwarded by the Superintendent, Birsa Munda Central Jail, Ranchi to the appropriate authorities on 10.04.2010 itself along with relevant documents viz. Mercy Petition, Copy of the Order of Additional Judge/Special Judge C.B.I. Ranchi, Copy of the Order of Hon'ble High Court of Jharkhand, Ranchi, Petition filed in the Hon'ble Supreme Court, Hon'ble Supreme Court's Order and Copy of Rule 923(III) of Jail Manual.

The petitioner only on 27.01.2014 i.e. nearly three years and 10 months, received the result of the disposal of his Mercy Petition preferred on 10.04.2010 by the Superintendent, Birsa Munda Central Jail from the Officer on Special Duty, Ministry of Home, Government of Jharkhand that the Mercy Petition was rejected by the President of India which fact was communicated by the Government of India, Ministry of Home Affairs vide its letter dated 08.11.2013.

In these circumstances the petitioner preferred to file this petition relying on the decision of Hon'ble Supreme Court in Shatrughan Chauhan and another v. Union of India and others2. The contention of the petitioner was that because of inordinate delay in disposal of his Mercy Petition, the death sentence be commuted to imprisonment for life. It is also submitted that right from the day when the death sentence was awarded i.e. from 09.04.2007, the petitioner has been incarcerated in solitary confinement.

While dealing with maintainability of Writ and issue in question, the Hon'ble Supreme Court has considered earlier verdicts on same subject matter by the Apex Court. In Shatrughan Chauhan matter (supra) while dealing with the issue relating to the maintainability of a petition under Article 32 in similar circumstances, it was observed that the challenge therein was not with regard to the final verdict imposing the death sentence but was based on the supervening circumstances or events that occurred after the confirmation of the death sentence. Relying on some of its earlier Judgments, this Court held such petitions under Article 32 to be maintainable.

It was held that challenge in the instant petition is also not with regard to the verdict wherein the death sentence stands imposed, but the focus is on the subsequent circumstances which are relied upon in support of the case for commutation and accordingly petition was held to maintainable.

While dealing with the submissions regarding delay in disposal of Mercy Petition and the effect of solitary confinement, Hon'ble Apex Court considered the Judgment passed in T.V. Vatheeswaran v. State of Tamil Nadu3, wherein the appellant was awarded death sentence by the first court eight years earlier, was noted by this Court. It was observed:

"20. ............. In the United States of America where the right to a speedy trial is a constitutionally guaranteed right, the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment or the vacation of the sentence (vide Strunk v. United States4. 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 dehumanizing factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except 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 substitute the sentence of imprisonment for life."

Further, in matter Sher Singh and others v. State of Punjab5, where the death sentence already stood confirmed by dismissal of appeal and review petition therefrom by this Court. Relying on the observations in Vatheeswaran (supra), delay in execution was projected as a ground in a petition under Article 32 of the Constitution of India. Though the Court was broadly in agreement with observations in Vatheeswaran (supra) it did not agree with the statement to the effect ".... that delay exceeding two years in the execution of sentence of death should be considered sufficient to entitle the person under sentence to death to invoke Article 21 and demand the questioning of the sentence of death."

The issue was settled by the Constitution Bench decision in Triveniben v. State of Gujarat6, where it was concluded that "No fixed period of delay could be held to make the sentence of death inexecutable .......". The scope and ambit of exercise of jurisdiction in such cases was delineated thus in para 22:

"22. .......... 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. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also."

The contention of the petitioner regarding solitary confinement i.e. since the day he was awarded death sentence, attention was drawn with Section 30(2) of the Prisons Act, 1894, which postulates segregation of a person 'under sentence of death. In the matter in Sunil Batra v. Delhi Administration7, Krishna Iyer J. observed : "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 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, Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, Code and Prison Rules, has not been disposed. Of course, once rejected by the Governor and the President, and on further application there is no stay of execution by the authorities, he is 'under sentence of death', even if he goes on making further mercy petitions. 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"

In Shatrughan Chauhan (supra) after considering law on the point as regards delay in execution of the death sentence and the resultant effect, as also the scope and ambit of exercise of power, it was observed in paras 38, 41 and 42 as under:-

"38. 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 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.

41. 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 (supra), 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.

42. 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 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."

Hon'ble Supreme Court accordingly held in its judgment that the death sentence awarded by the trial court on 09.04.2007 attained finality on 16.03.2010 with the dismissal of appeals by this Court. No further proceedings in the form of review petition etc. were taken on behalf of the petitioner. His Mercy Petition preferred on 10.04.2010 i.e. within a month of the decision of this Court was forwarded the same day with all relevant documents so as to enable the concerned functionaries to exercise requisite jurisdiction. Though no time limit can be fixed within which the Mercy Petition ought to be disposed of, in our considered view the period of 3 years and 10 months to deal with such Mercy Petition in the present case comes within the expression "inordinate delay". The delay is not to the account of the petitioner or as a result of any proceedings initiated by him or on his behalf but is certainly to the account of the functionaries and authorities concerned.

While disposing of the present Writ petition, Hon'ble Supreme Court held that the petitioner was kept in solitary confinement since the date trial court awarded the death sentence which is complete transgression of the right under Article 21 of the Constitution causing incalculable harm to the petitioner. A case is definitely made out under Article 32 of the Constitution of India. Accordingly, the Hon'ble Apex Court directed to substitute the sentence of life imprisonment in place of death sentence awarded to the petitioner.


1.[2014 STPL(Web) 845 SC]

2. [2014 (1) SCALE 437]

3. [(1983) 2 SCC 68]

4. [1973] 37 L.Ed. 56]

5. [(1983) 2 SCC 344]

6. [(1989) 1 SCC 678]

7. [(1978) 4 SCC 494]

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