SHABNAM HASHMI … PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. … RESPONDENT (S)

J U D G M E N T

RANJAN GOGOI, J.

1. Recognition of the right to adopt and to be adopted as a fundamental right under Part-III of the Constitution is the vision scripted by the public spirited individual who has moved this Court under Article 32 of the Constitution. There is an alternative prayer requesting the Court to lay down optional guidelines enabling adoption of children by persons irrespective of religion, caste, creed etc. and further for a direction to the respondent Union of India to enact an optional law the prime focus of which is the child with considerations like religion etc. taking a hind seat.

2. The aforesaid alternative prayer made in the writ petition appears to have been substantially fructified by the march that has taken place in this sphere of law, gently nudged by the judicial verdict in Lakshmi Kant Pandey Vs. Union of India1 and the supplemental, if not consequential, legislative innovations in the shape of the Juvenile Justice (Care And Protection of Children) Act, 2000 as amended in 2006 (hereinafter for short ‘the JJ Act, 2000) as also The Juvenile Justice (Care and Protection of Children) Rules promulgated in the year 2007 (hereinafter for short ‘the JJ Rules, 2007’).

3. The alternative prayer made in the writ petition may be conveniently dealt with at the outset. The decision of this Court in Lakshmi Kant Pandey (supra) is a high watermark in the development of the law relating to adoption. Dealing with inter-country adoptions, elaborate guidelines had been laid by this Court to protect and further the interest of the child. A regulatory body, i.e., Central Adoption Resource Agency (for short ‘CARA’) was recommended for creation and accordingly set up by the Government of India in the year 1989. Since then, the said body has been playing a pivotal role, laying down norms both substantive and procedural, in the matter of inter as well as in country adoptions. The said norms have received statutory recognition on being notified by the Central Govt. under Rule 33 (2) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and are today in force throughout the country, having also been adopted and notified by several states under the Rules framed by the states in exercise of the Rule making power under Section 68 of the JJ Act, 2000.

4. A brief outline of the statutory developments in the concerned sphere may now be sketched.

In stark contrast to the provisions of the JJ Act, 2000 in force as on date, the Juvenile Justice Act, 1986 (hereinafter for short ‘the JJ Act, 1986’) dealt with only “neglected” and “delinquent juveniles”. While the provisions of the 1986 Act dealing with delinquent juveniles are not relevant for the present, all that was contemplated for a ‘neglected juvenile’ is custody in a juvenile home or an order placing such a juvenile under the care of a parent, guardian or other person who was willing to ensure his good behaviour during the period of observation as fixed by the Juvenile Welfare Board. The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV under the head ‘Rehabilitation and Social Reintegration’ for a child in need of care and protection. Such rehabilitation and social reintegration was to be carried out alternatively by adoption or foster care or sponsorship or by sending the child to an after-care organization. Section 41 contemplates adoption though it makes it clear that the primary responsibility for providing care and protection to a child is his immediate family. Sections 42, 43 and 44 of the JJ Act, 2000 deals with alternative methods of rehabilitation namely, foster care, sponsorship and being looked after by an after-care organisation.

5. The JJ Act, 2000, however did not define ‘adoption’ and it is only by the amendment of 2006 that the meaning thereof came to be expressed in the following terms:
“2(aa)-“adoption” means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship”

6. In fact, Section 41 of the JJ Act, 2000 was substantially amended in 2006 and for the first time the responsibility of giving in adoption was cast upon the Court which was defined by the JJ Rules, 2007 to mean a civil court having jurisdiction in matters of adoption and guardianship including the court of the district judge, family courts and the city civil court. [Rule 33 (5)] Substantial changes were made in the other sub-sections of Section 41 of the JJ Act, 2000. The CARA, as an institution, received statutory recognition and so did the guidelines framed by it and notified by the Central Govt. [Section 41(3)].

7. In exercise of the rule making power vested by Section 68 of the JJ Act, 2000, the JJ Rules, 2007 have been enacted. Chapter V of the said Rules deal with rehabilitation and social reintegration. Under Rule 33(2) guidelines issued by the CARA, as notified by the Central Government under Section 41 (3) of the JJ Act, 2000, were made applicable to all matters relating to adoption. It appears that pursuant to the JJ Rules, 2007 and in exercise of the rule making power vested by the JJ Act, 2000 most of the States have followed suit and adopted the guidelines issued by CARA making the same applicable in the matter of adoption within the territorial boundaries of the concerned State.

Rules 33(3) and 33(4) of the JJ Rules, 2007 contain elaborate provisions regulating pre-adoption procedure i.e. for declaring a child legally free for adoption. The Rules also provide for foster care (including pre-adoption foster care) of such children who cannot be placed in adoption & lays down criteria for selection of families for foster care, for sponsorship and for being looked after by an aftercare organisation. Whatever the Rules do not provide for are supplemented by the CARA guidelines of 2011 which additionally provide measures for post adoption follow up and maintenance of data of adoptions.

8. It will now be relevant to take note of the stand of the Union of India. Way back on 15th May, 2006 the Union in its counter affidavit had informed the Court that prospective parents, irrespective of their religious background, are free to access the provisions of the Act for adoption of children after following the procedure prescribed. The progress on the ground as laid before the Court by the Union of India through the Ministry of Women and Child Development (respondent No. 3 herein) may also be noticed at this stage. The Union in its written submission before the Court has highlighted that at the end of the calendar year 2013 Child Welfare Committees (CWC) are presently functioning in a total of 619 districts of the country whereas State Adoption Resource Agencies (SARA) has been set up in 26 States/Union Territories; Adoption Recommendation Committees (ARCs) have been constituted in 18 States/Union Territories whereas the number of recognized adoption organisations in the country are 395. According to the Union the number of reported adoptions in the country from January, 2013 to September, 2013 was 19884 out of which 1712 cases are of inter-country adoption. The third respondent has also drawn the attention of the Court that notwithstanding the time schedule specified in the guidelines of 2011 as well as in the JJ Rules, 2007 there is undue delay in processing of adoption cases at the level of Child Welfare Committees (CWS), the Adoption Recommendation Committees (ARCs) as well as the concerned courts.

9. In the light of the aforesaid developments, the petitioner in his written submission before the Court, admits that the JJ Act, 2000 is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption. It is akin to the Special Marriage Act 1954, which enables any person living in India to get married under that Act, irrespective of the religion he follows. JJA 2000 with regard to adoption is an enabling optional gender-just law, it is submitted. In the written arguments filed on behalf of the petitioner it has also been stated that in view of the enactment of the JJ Act, 2000 and the Amending Act of 2006 the prayers made in the writ petition with regard to guidelines to enable and facilitate adoption of children by persons irrespective of religion, caste, creed etc. stands satisfactorily answered and that a direction be made by this Court to all States, Union Territories and authorities under the JJ Act, 2000 to implement the provisions of Section 41 of the Act and to follow the CARA guidelines as notified.

10. The All India Muslim Personal Law Board (hereinafter referred to as ‘the Board’) which has been allowed to intervene in the present proceeding has filed a detailed written submission wherein it has been contended that under the JJ Act, 2000 adoption is only one of the methods contemplated for taking care of a child in need of care and protection and that Section 41 explicitly recognizes foster care, sponsorship and being look after by after-care organizations as other/ alternative modes of taking care of an abandoned/surrendered child. It is contended that Islamic Law does not recognize an adopted child to be at par with a biological child. According to the Board, Islamic Law professes what is known as the “Kafala” system under which the child is placed under a ‘Kafil’ who provides for the well being of the child including financial support and thus is legally allowed to take care of the child though the child remains the true descendant of his biological parents and not that of the “adoptive” parents. The Board contends that the “Kafala” system which is recognized by the United Nation’s Convention of the Rights of the Child under Article 20(3) is one of the alternate system of child care contemplated by the JJ Act, 2000 and therefore a direction should be issued to all the Child Welfare Committees to keep in mind and follow the principles of Islamic Law before declaring a muslim child available for adoption under Section 41(5) of the JJ Act, 2000.

11. The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, Rules and the CARA guidelines, as notified under the Act. The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him. To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.

12. The writ petitioner has also prayed for a declaration that the right of a child to be adopted and that of the prospective parents to adopt be declared a fundamental right under Article 21 of the Constitution. Reliance is placed in this regard on the views of the Bombay and Kerala High Courts in In re: Manuel Theodore D’souza2 and Philips Alfred 2 (2000) 3 BomCR 244 Malvin Vs. Y.J.Gonsalvis & Ors.3 respectively. The Board objects to such a declaration on the grounds already been noticed, namely, that Muslim Personal Law does not recognize adoption though it does not prohibit a childless couple from taking care and protecting a child with material and emotional support.

13. Even though no serious or substantial debate has been made on behalf of the petitioner on the issue, abundant literature including the holy scripts have been placed before the Court by the Board in support of its contention, noted above. Though enriched by the lengthy discourse laid before us, we do not think it necessary to go into any of the issues raised. The Fundamental Rights embodied in Part-III of the Constitution constitute the basic human rights which inhere in every person and such other rights which are fundamental to the dignity and well being of citizens. While it is correct that the dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt 3 AIR 1999 Kerala 187 or to be adopted to the status of a Fundamental Right, in our considered view, will have to await a dissipation of the conflicting thought processes in this sphere of practices and belief prevailing in the country. The legislature which is better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment of the JJ Act 2000 and the same must receive due respect. Conflicting view points prevailing between different communities, as on date, on the subject makes the vision contemplated by Article 44 of the Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the Court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain restraint. All these impel us to take the view that the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution. In this regard we would like to observe that the decisions of the Bombay High Court in Manuel Theodore D’souza (supra) and the Kerala High Court in Philips Alfred Malvin (supra) can be best understood to have been rendered in the facts of the respective cases. While the larger question i.e. qua Fundamental Rights was not directly in issue before the Kerala High Court, in Manuel Theodore D’souza (supra) the right to adopt was consistent with the canonical law applicable to the parties who were Christians by faith. We hardly need to reiterate the well settled principles of judicial restraint, the fundamental of which requires the Court not to deal with issues of Constitutional interpretation unless such an exercise is but unavoidable.

14. Consequently, the writ petition is disposed of in terms of our directions and observations made above.

……………………………CJI. [P. SATHASIVAM]
………………………………J. [RANJAN GOGOI]
………….……………………J. [SHIVA KIRTI SINGH]

NEW DELHI, FEBRUARY 19, 2014.

The post Shabnam Hashmi Vs. Union of India & Ors appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 55 OF 2013
Shatrughan Chauhan & Anr. …. Petitioner (s)
Versus
Union of India & Ors. ….Respondent(s)
WITH
WRIT PETITION (CRIMINAL) NO. 34 OF 2013
WRIT PETITION (CRIMINAL) NO. 56 OF 2013
WRIT PETITION (CRIMINAL) NO. 136 OF 2013
WRIT PETITION (CRIMINAL) NO. 139 OF 2013
WRIT PETITION (CRIMINAL) NO. 141 OF 2013
WRIT PETITION (CRIMINAL) NO. 132 OF 2013
WRIT PETITION (CRIMINAL) NO. 187 OF 2013
WRIT PETITION (CRIMINAL) NO. 188 OF 2013
WRIT PETITION (CRIMINAL) NO. 190 OF 2013
WRIT PETITION (CRIMINAL) NO. 191 OF 2013
WRIT PETITION (CRIMINAL) NO. 192 OF 2013
WRIT PETITION (CRIMINAL) NO. 193 OF 2013
J U D G M E N T

P.Sathasivam, CJI.
1) Our Constitution is highly valued for its articulation. One such astute drafting is Article 21 of the Constitution which postulates that every human being has inherent right to life and mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Over the span of years, this Court has expanded the horizon of ‘right to life’ guaranteed under the Constitution to balance with the progress of human life. This case provides yet another momentous occasion, where this Court is called upon to decide whether it will be in violation of Article 21, amongst other provisions, to execute the levied death sentence on the accused notwithstanding the existence of supervening circumstances. Let us examine the supervening circumstances of each individual case to arrive at a coherent decision.

2) All the above writ petitions, under Article 32 of the Constitution of India, have been 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 mercy petitions by the Governor and the President of India.

3) In all the writ petitions, the main prayer consistently relates to the issuance of a writ of declaration declaring that execution of sentence of death pursuant to the rejection of the mercy petitions by the President of India is unconstitutional and to set aside the death sentence imposed upon them by commuting the same to imprisonment for life. Further, it is also prayed for declaring the order passed by the Governor/President of India rejecting their respective mercy petitions as illegal and unenforceable. In view of the similarity of the reliefs sought for in all the writ petitions, we are not reproducing every prayer hereunder, however, while dealing with individual claims, we shall discuss factual details, the reliefs sought for and the grounds urged in support of their claim at the appropriate place. Besides, in the writ petition filed by PUDR, PUDR prayed for various directions in respect of procedure to be followed while considering the mercy petitions, and in general for protection of rights of the death row convicts. We shall discuss discretely the aforesaid prayers in the ensuing paragraphs.

4) Heard Mr. Ram Jethmalani, Mr. Anand Grover, Mr. R. Basant, Mr. Colin Gonsalves, learned senior counsel and Dr. Yug Mohit Chaudhary, learned counsel for the petitioners and Mr. Mohan Parasaran, learned Solicitor General, Mr. L.N. Rao, Mr. Siddharth Luthra, learned Additional Solicitor Generals, Mr. V.C. Mishra, learned Advocate General, Mr. V.N. Raghupathy, Ms. Anitha Shenoy, Mr. Rajiv Nanda, Mr. C.D. Singh, learned counsel and Mr. Manjit Singh, Additional Advocate General for the respondents. We also heard Mr. T.R. Andhyarujina, learned senior counsel as amicus curiae.

5) Before considering the merits of the claim of individual case, it is essential to deliberate on certain vital points of law that will be incidental and decisive for determining the case at hand.

aintainability of the Petitions
6) Before we advert to the issue of maintainability of the petitions, it is pertinent to grasp the significance of Article 32 as foreseen by Dr. Ambedkar, the principal architect of the Indian Constitution. His words were appositely reiterated in Minerva Mills Ltd. and Ors. vs. Union of India and Ors. (1980) 2 SCC 625 as follows:-
“87. ….If I was asked to name any particular Article in this Constitution as the most important – an Article without which this Constitution would be a nullity – I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it.” (emphasis supplied)

The fundamental right to move this Court can, therefore, be appropriately described as the corner-stone of the democratic edifice raised by the Constitution. At the same time, this Court, in A.R Antulay vs. Union of India (1988) 2 SCC 602, clarified and pronounced that any writ petition under Article 32 of the Constitution challenging the validity of the order or judgment passed by this Court as nullity or otherwise incorrect cannot be entertained. In this light, let us examine the maintainability of these petitions.

7) The aforesaid petitions, under Article 32 of the Constitution, seek 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.

8) At the outset, the petitioners herein justly elucidated that they are not challenging the final verdict of this Court wherein death sentence was imposed. In fact, they asserted in their respective petitions that if the sentence had been executed then and there, there would have been no grievance or cause of action. However, it wasn’t and the supervening events that occurred after the final confirmation of the death sentence are the basis of filing these petitions.

9) It is a time-honored principle, as stipulated in R.D Shetty vs. International Airport Authority (1979) 3 SCC 489, that no matter, whether the violation of fundamental right arises out of an executive action/inaction or action of the legislature, Article 32 can be utilized to enforce the fundamental rights in either event. In the given case, the stand of the petitioners herein is that exercise of the constitutional power vested in the executive specified under Article 72/161 has violated the fundamental rights of the petitioners herein. This Court, as in past, entertained the petitions of the given kind and issued appropriate orders as in T.V. Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC 68, Sher Singh and Ors. vs. State of Punjab (1983) 2 SCC 344 Triveniben vs. State of Gujarat (1988) 4 SCC 574 etc. Accordingly, we accede to the stand of the petitioners and hold that the petitions are maintainable.

Nature of power guaranteed under Article 72/161 of the Constitution

10) It is apposite to refer the relevant Articles which give power to the President of India and the Governor to grant pardons and to suspend, remit or commute sentences in certain cases. They are as follows:
“Article 72. Power of President to grant pardons, etc. and to suspend, remit or commute sentences in certain cases – (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence –
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court martial.
(3) Nothing in sub-clause of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State, under any law for the time being in force.”
Article 161. Power of Governor to grant pardons, etc. and to suspend, remit or commute sentences in certain cases – The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”
11) The memoir and scope of Article 72/161 of the Constitution was extensively considered in Kehar Singh vs. Union of India & Anr., (1989) 1 SCC 204 in the following words:

“7. The Constitution of India, in keeping with modern constitutional practice, is a constitutive document, fundamental to the governance of the country, whereby, according to accepted political theory, the people of India have provided a constitutional polity consisting of certain primary organs, institutions and functionaries to exercise the powers provided in the Constitution. All power belongs to the people, and it is entrusted by them to specified institutions and functionaries with the intention of working out, maintaining and operating a constitutional order. The Preambular statement of the Constitution begins with the significant recital:

We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic… do hereby adopt, enact and give to ourselves this Constitution.

To any civilized society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State. In England, the power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, however, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme. In an opinion, remarkable for its erudition and clarity, Mr Justice Holmes, speaking for the Court in W.I. Biddle v. Vuco Perovich 71 L Ed 1161) enunciated this view, and it has since been affirmed in other decisions. The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned Counsel, Shri Ram Jethmalani and Shri Shanti Bhushan, appearing for the Petitioner that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) of the Constitution, must act in accordance with such advice……” (Emphasis Supplied)

In that case, the Constitution Bench also considered whether the President can, in exercise of the power under Article 72 of the Constitution, scrutinize the evidence on record and come to a different conclusion than the one arrived at by the Court and held as under:
“10. We are of the view that it is open to the President in the exercise of the power vested in him by Article 72 of the Constitution to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. and this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him….

The legal effect of a pardon is wholly different from a judicial supersession of the original sentence. It is the nature of the power which is determinative….

It is apparent that the power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court.

16. …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.”

12) 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 be, in exercise of power under Article 72/161 respectively, may examine the evidence afresh and this exercise of power is clearly independent of the judiciary. This Court, in numerous instances, clarified that the executive is not sitting as a court of appeal rather the power of President/Governor to grant remission of sentence is an act of grace and humanity in appropriate cases, i.e., distinct, absolute and unfettered in its nature.

13) In this context, the deliberations in Epuru Sudhakar & Anr. vs. Govt. of A.P. & Ors., (2006) 8 SCC 161 are relevant which are as under:

“16. The philosophy underlying the pardon power is that “every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy. [See 59 American Jurisprudence 2d, page 5]

17. The rationale of the pardon power has been felicitously enunciated by the celebrated Justice Holmes of the United States Supreme Court in the case of Biddle v. Perovich in these words 71 L. Ed. 1161 at 1163: A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” (emphasis added)

14) Article 72/161 of the Constitution entail remedy to all the convicts and not limited to only death sentence cases and must 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.

15) Shri Andhyarujina, learned senior counsel, who assisted the Court as amicus commenced his submissions by pointing out that the power reposed in the President under Article 72 and the Governor under Article 161 of the Constitution is not a matter of grace or mercy, but is a constitutional duty of great significance and the same has to be exercised with great care and circumspection keeping in view the larger public interest. He referred to the judgment of the U.S. Supreme Court in Biddle vs. Perovoch 274 US 480 as also the judgments of this Court in Kehar Singh (supra) and Epuru Sudhakar (supra).

16) In this context, in Kuljeet Singh vs. Lt. Governor (1982) 1 SCC 417, this Court held:
“1. The question as regards the scope of the power of the President under Article 72 of the Constitution to commute a sentence of death into a lesser sentence may have to await examination on an appropriate occasion. This clearly is not that occasion because insofar as this case is concerned, whatever be the guide-lines observed for the exercise of the power conferred by Article 72, the only sentence which can possibly be imposed upon the petitioner is that of death and no circumstances exist for interference with that sentence. Therefore we see no justification for saying that in refusing to commute the sentence of death imposed upon the petitioner into a lesser sentence, the President has in any manner transgressed his discretionary power under Article 72. Undoubtedly, the President has the power in an appropriate case to commute any sentence imposed by a court into a lesser sentence and as said by Chief Justice Taft in James Shewan and Sons v. U.S., the “executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law” and that the administration of justice by the courts is not necessarily or certainly considerate of circumstances which may properly mitigate guilt. But the question as to whether the case is appropriate for the exercise of the power conferred by Article 72 depends upon the facts and circumstances of each particular case. The necessity or the justification for exercising that power has therefore to be judged from case to case. In fact, we do not see what useful purpose will be achieved by the petitioner by ensuring the imposition of any severe, judicially evolved constraints on the wholesome power of the President to use it as the justice of a case may require. After all, the power conferred by Article 72 can be used only for the purpose of reducing the sentence, not for enhancing it. We need not, however, go into that question elaborately because insofar as this case is concerned, we are quite clear that not even the most liberal use of his mercy jurisdiction could have persuaded the President to interfere with the sentence of death imposed upon the petitioner, in view particularly of the considerations mentioned by us in our judgment in Kuljeet Singh v. Union of India. We may recall what we said in that judgment that “the death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamp”, that the “survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security”, and that “they are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a mature society.”

17) In concise, the power vested 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 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.

Limited Judicial Review of the executive orders under Article 72/161

18) As already emphasized, the power of the executive to grant pardon under Article 72/161 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 vs. Union of India (2004) 7 SCC 634. 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. In this context, in Epuru Sudhakar (supra), this Court held thus:

“36. So far as desirability to indicate guidelines is concerned in Ashok Kumar case it was held as follows: (SCC pp. 518-19, para 17)

“17. In Kehar Singh case on the question of laying down guidelines for the exercise of power under Article 72 of the Constitution this Court observed in para 16 as under: (SCC pp. 217-18, para 16)

‘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.’

These observations do indicate that the Constitution Bench which decided Kehar Singh case 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 72/161 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.”

19) Nevertheless, this Court has been of the consistent view that the executive orders under Article 72/161 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. Accordingly, there is no dispute as to the settled legal proposition that the power exercised under Article 72/161 could be the subject matter of limited judicial review. [vide Kehar Singh (supra); Ashok Kumar (supra); Swaran Singh vs. State of U.P AIR 1998 SC 2026; Satpal and Anr. vs. State of Haryana and Ors. AIR 2000 SC 1702; and Bikas Chatterjee (supra)]

20) Though the contours of power under Article 72/161 have not been defined, this Court, in Narayan Dutt vs. State of Punjab (2011) 4 SCC 353, para 24, has held that the exercise of power is subject to challenge on the following grounds:
a) If the Governor had been found to have exercised the power himself without being advised by the government;
b) If the Governor transgressed his jurisdiction in exercising the said power;
c) If the Governor had passed the order without applying his mind;
d) The order of the Governor was mala fide; or
e) The order of the Governor was passed on some extraneous considerations.

These propositions are culmination of views settled by this Court that:
(i) Power should not be exercised malafidely. (Vide Maru Ram vs. Union of India, paras 62, 63 & 65).
(ii) No political considerations behind exercise of
power. In this context, in Epuru Sudhakar
(supra), this Court held thus:
“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.

35. Two important aspects were also highlighted by learned amicus curiae; one relating to the desirability of indicating reasons in the order granting pardon/remission while the other was an equally more important question relating to power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration. According to learned amicus curiae, reasons are to be indicated, in the absence of which the exercise of judicial review will be affected.

37. In Kehar Singh case this Court held that: (SCC p. 216, para 13)
“There is also no question involved in this case of asking for the reasons for the President’s order.”

38. The same obviously means that the affected party need not be given the reasons. The question whether reasons can or cannot be disclosed to the Court when the same is challenged was not the subject-matter of consideration. In any event, the absence of any obligation to convey the reasons does not mean that there should not be legitimate or relevant reasons for passing the order.”

21) A perusal of the above case-laws 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.

22) It is the claim of the petitioners herein that the impugned executive orders of rejection of mercy petitions against 15 accused persons were passed without considering the supervening events which are crucial for deciding the same. The legal basis for taking supervening circumstances into account is that Article 21 inheres a right in every prisoner till his last breath and this Court will protect that right even if the noose is being tied on the condemned prisoner’s neck. [vide Sher Singh (supra), Triveniben (supra), Vatheeswaran (supra), Jagdish vs. State of Madhya Pradesh (2009) 9 SCC 495].

23) Certainly, delay is one of the permitted grounds for limited judicial review as stipulated in the stare decisis. Henceforth, we shall scrutinize the claim of the petitioners herein and find out the effect of supervening circumstances in the case on hand.

Supervening Circumstances

24) The petitioners herein have asserted the following events as the supervening circumstances, for commutation of death sentence to life imprisonment.
(i) Delay
(ii) Insanity
(iii) Solitary Confinement
(iv) Judgments declared per incuriam
(v) Procedural Lapses

25) All the petitioners have more or less asserted on the aforesaid grounds which, in their opinion, the executive had failed to take note of while rejecting the mercy petitions filed by them. Let us discuss them distinctively and come to a conclusion whether each of the circumstances exclusively or together warrants the commutation of death sentence into life imprisonment.

(i) Delay

26) It is pre-requisite to comprehend the procedure adopted under Article 72/161 for processing the mercy petition so that we may be in a position to appreciate the aspect of delay as one of the supervening circumstances.

27) The death row convicts invariably approached the Governor under Article 161 of the Constitution of India with a mercy petition after this Court finally decided the matter. During the pendency of the mercy petition, the execution of death sentence was 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 one or two pages giving grounds for mercy. To examine the mercy petition so received and to arrive at a conclusion, the documents like copy of the judgments of the trial Court, High Court and the Supreme Court are requested from the State Government. The other documents required include details of the decision taken by the Governor under Article 161 of the Constitution, 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 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 the claim of the Union of India that these documents are then extensively examined and in 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. It is the claim of the respondents that there cannot be a specific time limit for examination of mercy petitions.

28) It is also the claim of the respondents that Article 72 envisages no limit as to time within which the mercy petition is to be disposed of by the President of India. Accordingly, it is contended that since no time limit is prescribed for the President under Article 72, the courts may not go into it or fix any outer limit. It is also contended that the power of the President under Article 72 is discretionary which cannot be taken away by any statutory provision and cannot be altered, modified or interfered with, in any manner, whatsoever, by any statutory provision or authority. The powers conferred on the President are special powers overriding all other laws, rules and regulations in force. Delay by itself does not entail the person under sentence of death to request for commutation of sentence into life imprisonment.

29) It is also pointed out that 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. It is also brought to our notice that as per List II Entry 4 of the Seventh Schedule to the Constitution of India, “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 jail manual/rules etc.

30) On the contrary, it is the plea of the petitioners that after exhausting of the proceedings in the courts of law, the aggrieved convict gets right to make a mercy petition before the Governor and the President of India highlighting his grievance. If there is any undue, unreasonable and prolonged delay in disposal of his mercy petition, the convict is entitled to approach this Court by way of a writ petition under Article 32 of the Constitution.

It is vehemently asserted that the execution of death penalty in the face of such an inordinate delay would infringe fundamental right to life under Article 21 of the Constitution, which would invite the exercise of the jurisdiction by this Court.

31) 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 deprived of his life and liberty except in accordance with the procedure established by law. According to learned counsel for the Union of India, death sentence is imposed on a person found guilty of an offence of heinous nature after adhering to the due procedure established by law which is subject to appeal and review. Therefore, delay in execution must not be a ground for commutation of sentence of such a heinous crime. On the other hand, the argument of learned counsel for the petitioners/death convicts is that human life is sacred and inviolable and every effort should be made to protect it. Therefore, inasmuch as Article 21 is available to all the persons including convicts and continues till last breath if they establish and prove the supervening circumstances, viz., undue delay in disposal of mercy petitions, undoubtedly, this Court, by virtue of power under Article 32, can commute the death sentence into imprisonment for life. As a matter of fact, it is the stand of the petitioners that in a petition filed under Article 32, even without a presidential order, if there is unexplained, long and inordinate delay in execution of death sentence, the grievance of the convict can be considered by this Court.

32) This Court is conscious of the fact, namely, 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 sentencing process as well. The right of a victim to a fair investigation under Article 21 has been recognized in State of West Bengal vs. Committee for Democratic Rights, West Bengal, (2010) 3 SCC 571, which is as under:
“68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows:

(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.

(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State…”

We do comprehend the critical facet involved in the arguments by both the sides and we will strive to strike a balance between the rights of the accused as well as of the victim while deciding the given case.

33) This is not the first time when the question of such a nature is raised before this Court. In Ediga Anamma vs. State of A.P., 1974(4) SCC 443 Krishna Iyer, J. spoke of the “brooding horror of haunting the prisoner in the condemned cell for years”. Chinnappa Reddy, J. in Vatheeswaran (supra) said that prolonged delay in execution of a sentence of death had a dehumanizing effect and this had the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the fundamental right under Article 21 of the Constitution. Chinnappa Reddy, J. quoted the Privy Council’s observation in a case of such an inordinate delay in execution, viz., “The anguish of alternating hope and despair the agony of uncertainty and the consequences of such suffering on the mental, emotional and physical integrity and health of the individual has to be seen.” Thereby, a Bench of two Judges of this Court held that the delay of two years in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to plead for commutation of sentence of death to imprisonment for life. Subsequently, in Sher Singh (supra), which was a decision of a Bench of three Judges, it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is not good enough for commutation and two years’ rule could not be laid down in cases of delay.

34) Owing to the conflict in the two decisions, the matter was referred to a Constitution Bench of this Court for deciding the two questions of law viz., (i) whether the delay in execution itself will be a ground for commutation of sentence and (ii) whether two years’ delay in execution will automatically entitle the condemned prisoner for commutation of sentence. In Smt. Triveniben vs. State of Gujarat (1988) 4 SCC 574, this Court held thus:

“2. …..Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the court while finally maintaining the sentence of death. This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran case cannot be said to lay down the correct law and therefore to that extent stands overruled.”

35) While giving full reasons which is reported in Smt. Triveniben vs. State of Gujarat, (1989) 1 SCC 678 this Court, in para 22, appreciated the aspect of delay in execution in the following words:-

“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 and also in A.R. Antulay v. R.S. Nayak 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.”

36) Though learned counsel appearing for the Union of India relied on certain observations of Shetty, J. who delivered concurring judgment, particularly, para 76, holding that “the inordinate delay, may be a significant factor, but that by itself cannot render the execution unconstitutional”, after careful reading of the majority judgment authored by Oza, J., particularly, para 2 of the order dated 11.10.1988 and para 22 of the subsequent order dated 07.02.1989, we reject the said stand taken by learned counsel for the Union of India.

37) In Vatheeswaran (supra), the dissenting opinion of the two judges in the Privy Council case, relied upon by this Court, was subsequently accepted as the correct law by the Privy Council in Earl Pratt vs. AG for Jamaica [1994] 2 AC 1 – Privy Council, after 22 years. There is no doubt that judgments of the Privy Council have certainly received the same respectful consideration as the judgments of this Court. For clarity, we reiterate that except the ratio relating to delay exceeding two years in execution of sentence of death, all other propositions are acceptable, in fact, followed in subsequent decisions and should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and plead for commutation of the sentence.

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.

39) 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 and psychological stresses on the convict under sentence of death. Indisputably, this Court, while 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.

40) 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 punishment. Pursuant to the judgment of this Court in Vishaka vs. State of Rajasthan, (1997) 6 SCC 241, international covenants to which India is a party are a part of domestic law unless they are contrary to a specific law in force. It is this expression (“cruel and degrading treatment and/or punishment”) which has ignited the philosophy of Vatheeswaran (supra) and the cases which follow it. It is in this light, the Indian cases, particularly, the leading case of Triveniben (supra) has been followed in the Commonwealth countries. It is useful to refer the following foreign judgments which followed the proposition :
i) Earl Pratt vs. AG for Jamaica [1994] 2 AC 1 – Privy Council
ii) Catholic Commission for Justice & Peace in Zimbabwe vs. Attorney General, 1993 (4) S.A. 239 – Supreme Court of Zimbabwe
iii) Soering vs. United Kingdom [App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989)] – European Court of Human Rights
iv) Attorney General vs. Susan Kigula, Constitutional Appeal No. 3 of 2006 – Supreme Court of Uganda
v) Herman Mejia and Nicholas Guevara vs. Attorney General, A.D. 2000 Action No. 296 – Supreme Court of Belize.

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 amd 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.

43)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, 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 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 sentence. In fact, in Vatheeswaran (supra), particularly, in para 10, it was elaborated where amongst other authorities, the minority view of Lords Scarman and Brightman in the 1972 Privy Council case of Noel Noel Riley vs. Attorney General, (1982) Crl.Law Review 679 by quoting “sentence of death is one thing, sentence of death followed by lengthy imprisonment prior to execution is another”. The appropriate relief in cases where the execution of death sentence is delayed, the Court held, is to vacate the sentence of death. In para 13, the Court made it clear that Articles 14, 19 and 21 supplement one another and the right which was spelled out from the Constitution was a substantive right of the convict and not merely a matter of procedure established by law. This was the consequence of the judgment in Maneka Gandhi vs. Union of India (1978) 1 SCC 248 which made the content of Article 21 substantive as distinguished from merely procedural.

44)Another argument advanced by learned ASG is that even if the delay caused seems to be undue, the matter must be referred back to the executive and a decision must not be taken in the judicial side. Though we appreciate the contention argued by the learned ASG, we are not inclined to accept the argument. The concept of supervening events emerged from the jurisprudence set out in Vatheeswaran (supra) and Triveniben (supra). 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 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.

45)At this juncture, it is pertinent to refer the records of the disposal of mercy petitions compiled by Mr. Bikram Jeet Batra and others, which are attached as annexures in almost all the petitions herein. At the outset, this document reveals that the mercy petitions were disposed of more expeditiously in former days than in the present times. Mostly, until 1980, the mercy petitions were decided in minimum of 15 days and in maximum of 10-11 months. Thereafter, from 1980 to 1988, the time taken in disposal of mercy petitions was gradually increased to an average of 4 years. It is exactly at this point of time, the cases like Vatheeswaran (supra) and Triveniben (supra) were decided which gave way for developing the jurisprudence of commuting the death sentence based on undue delay. It is also pertinent to mention that this Court has observed in these cases that when such petitions under Article 72 or 161 are received by the authorities concerned, it is expected that these petitions shall be disposed of expeditiously. In Sher Singh (supra) their Lordships have also impressed the Government of India and all the State Governments for speedy disposal of petitions filed under Articles 72 and 161 and issued directions in the following manner:

“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.

46)Obviously, the mercy petitions disposed of from 1989 to 1997 witnessed the impact of the observations in the disposal of mercy petitions. Since the 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 itself as now the delay of maximum 12 years is seen in disposing of the mercy petitions under Article 72/161 of the Constitution.

47)We sincerely hope and believe that 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 followed in verbatim. Although, no time frame can be set for the President for disposal of the mercy petition but we can certainly request the concerned Ministry to follow its own rules rigorously which can reduce, to a large extent, the delay caused.

48)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.
∙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;
∙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 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.

49)These guidelines and the scope of the power set out above make it clear that it is an extraordinary power not limited by judicial determination of the case and is not to be exercised lightly or as a matter of course. We also suggest, 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 constitutional authorities are made aware of the delay caused at their end which aspect has to be considered 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 (supra), delays in the judicial process are accounted for in the final verdict of the Court terminating the judicial exercise.

50)Another vital aspect, without mention of which the present discussion will not be complete, is that, as aforesaid, Article 21 is the 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 respondents that the commutation of sentence of death based on delay alone will be against the victim’s interest.

51)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 consideration in determining the appropriate sentence. The object of punishment is lucidly elaborated in Ram Narain vs. State of Uttar Pradesh (1973) 2 SCC 86 in the following words:-

“8. …the broad object of punishment of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crimes does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient….”

52)The object of punishment has been succinctly stated in Halsbury’s Laws of England, (4th Edition: Vol. II: para 482)thus:

“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 retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided.”

53)All these aspects were emphatically considered by this Court while pronouncing the final verdict against the petitioners herein thereby upholding the sentence of death imposed by the High Court. Nevertheless, the same accused (petitioners herein) are before us now under Article 32 petition seeking commutation of sentence on the basis of undue delay caused in execution of their levied death sentence, which amounts to torture and henceforth violative of Article 21 of the Constitution. We must clearly see the distinction under both circumstances. Under the former 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 seeking commutation of sentence. This distinction must be considered and appreciated.

54)As already asserted, this Court has no jurisdiction under Article 32 to reopen the case on merits. Therefore, in the light of the aforesaid elaborate discussion, we are of the cogent view that undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence. However, the nature of delay i.e. whether it is undue or unreasonable must be appreciated based on the facts of individual cases and no exhaustive guidelines can be framed in this regard.

Rationality of Distinguishing between Indian Penal Code, 1860 And Terrorist and Disruptive Activities (Prevention) Act Offences for Sentencing Purpose

55)In Writ Petition No. 34 of 2013 – the accused were mulcted with TADA charges which ultimately ended in death sentence. Mr. Ram Jethmalani, learned senior counsel for the petitioners in that writ petition argued against the ratio laid down in Devender Pal Singh Bhullar vs. State (NCT) of Delhi (2013) 6 SCC 195 which holds that when the accused are convicted under TADA, there is no question of showing any sympathy or considering supervening circumstances for commutation of sentence, and emphasized the need for reconsideration of the verdict. According to Mr. Ram Jethmalani, Devender Pal Singh Bhullar (supra) is per incuriam and is not a binding decision for other cases. He also prayed that inasmuch as the ratio laid down in Devender Pal Singh Bhullar (supra) is erroneous, this Court, being a larger Bench, must overrule the same.

56)He pointed out that delay in execution of sentence of death after it has become final at the end of the judicial process is wholly unconstitutional inasmuch it constitutes torture, deprivation of liberty and detention in custody not authorized by law within the meaning of Article 21 of the Constitution. He further pointed out that this involuntary detention of the convict is an action not authorized by any penal provision including Section 302 IPC or any other law including TADA. On the other hand, Mr. Luthra, learned ASG heavily relying on the reasonings in Devender Pal Singh Bhullar (supra) submitted that inasmuch as the crime involved is a serious and heinous and the accused were charged under TADA, there cannot be any sympathy or leniency even on the ground of delay in disposal of mercy petition. According to him, considering the gravity of the crime, death sentence is warranted and Devender Pal Singh Bhullar (supra) has correctly arrived at a conclusion and rejected the claim for commutation on the ground of delay.

57)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 vs. State of Punjab (1980) 2 SCC 684 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.

58)As rightly pointed out by Mr. Ram Jethmalani, 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 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.

59)Now, in this background, let us consider the ratio laid down in Devender Pal Singh Bhullar (supra).

60)The brief facts of that case were: Devender Pal Singh Bhullar, who was convicted by the Designated Court at Delhi for various offences under TADA, IPC and was found guilty and sentenced to death. The appeal as well as the review filed by him was dismissed by this Court. Soon after the dismissal of the review petition, Bhullar submitted a mercy petition dated 14.01.2003 to the President of India under Article 72 of the Constitution and prayed for commutation of his sentence. Various other associations including Delhi Sikh Gurdwara Management Committee sent letters in connection with commutation of the death sentence awarded to him. During the pendency of the petition filed under Article 72, he also filed Curative Petition (Criminal) No. 5 of 2013 which was also dismissed by this Court on 12.03.2013. After prolonged correspondence and based on the advice of the Home Minister, the President rejected his mercy petition which was informed vide letter dated 13.06.2011 sent by the Deputy Secretary (Home) to the Jail Authorities. After rejection of his petition by the President, Bhullar filed a writ petition, under Article 32 of the Constitution, in this regard praying for quashing the communication dated 13.06.2011. While issuing notice in Writ Petition (Criminal) Diary No. 16039/2011, this Court directed the respondents to clarify as to why the petitions made by the petitioner had not been disposed of for the last 8 years. In compliance with the courts direction, the Deputy Secretary (Home) filed an affidavit giving reasons for the delay. This Court, after adverting to all the earlier decisions, instructions regarding procedure to be observed for dealing with the petitions for mercy, accepted that there was a delay of 8 years. Even after accepting that long delay may be one of the grounds for commutation of sentence of death into life imprisonment, this Court dismissed his writ petition on the ground that the same cannot be invoked in cases where a person is convicted for an offence under TADA or similar statutes. This Court also held that such cases stand on an altogether different footing and cannot be compared with murders committed due to personal animosity or over property and personal disputes. It is also relevant to point out that while arriving at such conclusion, the Bench heavily relied on opinion expressed by Shetty, J. in Smt. Triveniben (supra). Though the Bench adverted to paras 73, 74, 75 and 76 of Triveniben (supra), the Court very much emphasized para 76 which reads as under:-

“76. … The court while examining the matter, for the reasons already stated, cannot take into account the time utilised in the 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 by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself…” (emphasis supplied)

61)On going through the judgment of Oza, J. on his behalf and for M.M. Dutt, K.N. Singh and L.M. Sharma, JJ., we are of the view that the above quoted statement of Shetty, J. is not a majority view and at the most this is a view expressed by him alone. In this regard, at the cost of repetition it is relevant to refer once again the operative portion of the order dated 11.10.1988 in Triveniben (supra) which is as under:-

“2. We are of the opinion that:
Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the court while finally maintaining the sentence of death. This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran case cannot be said to lay down the correct law and therefore to that extent stands overruled.”

62)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 07.02.1989. In such circumstances and also in view of the categorical opinion of Oza, J. in para 22 of the judgment in

Triveniben (supra) that “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…”, it cannot be held, as urged, on behalf of the Union of India that the majority opinion in Triveniben (supra) 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 (supra) 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 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 in Vatheeswaran (supra) and only to that extent overruled the same.

63)Incidentally, it is relevant to point out Mahendra Nath Das vs. Union of India and Ors. (2013) 6 SCC 253, wherein the very same bench, taking note of the fact that there was a delay of 12 years in the disposal of the mercy petition and also considering the fact that the appellants therein were prosecuted and convicted under Section 302 IPC held the rejection of the appellants’ mercy petition as illegal and consequently, the sentence of death awarded to them by the trial Court which was confirmed by the High Court, commuted into life imprisonment.

64)In the light of the same, we are of the view that the ratio laid down in Devender Pal Singh Bhullar (supra) is per incuriam. There is no dispute that in the same decision this Court has accepted the ratio enunciated in Triveniben (supra) (Constitution Bench) and also noted some other judgments following the ratio laid down in those cases that unexplained long delay may be one of the grounds for commutation of sentence of death into life imprisonment. There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence. Each case requires consideration on its own facts.

65)It is useful to refer a Constitution Bench decision of this Court in Mithu vs. State of Punjab (1983) 2 SCC 277, wherein this Court held Section 303 of the IPC as unconstitutional and declared it void. The question before the Constitution Bench was whether Section 303 of IPC infringes the guarantee contained in Article 21 of the Constitution, which provides that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. Chandrachud, J. the then Hon’ble the Chief Justice, speaking for himself, Fazal Ali, Tulzapurkar and Varadarajan, JJ., struck down Section 303 IPC as unconstitutional and declared it void. The Bench also held that all the cases of murder will now fall under Section 302 IPC and there shall be no mandatory sentence of death for the offence of murder. The reasons given by this Court for striking down this aforesaid section will come in aid for this case. Section 303 IPC was as under:

“303. Punishment for murder by life convict.— Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.”

66)Before striking down Section 303 IPC, this Court made the following conclusion:

“3…The reason, or at least one of the reasons, why the discretion of the court to impose a lesser sentence was taken away and the sentence of death was made mandatory in cases which are covered by Section 303 seems to have been that if, even the sentence of life imprisonment was not sufficient to act as a deterrent and the convict was hardened enough to commit a murder while serving that sentence, the only punishment which he deserved was death. The severity of this legislative judgment accorded with the deterrent and retributive theories of punishment which then held sway. The reformative theory of punishment attracted the attention of criminologists later in the day…

5…The sum and substance of the argument is that the provision contained in Section 303 is wholly unreasonable and arbitrary and thereby, it violates Article 21 of the Constitution which affords the guarantee that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Since the procedure by which Section 303 authorises the deprivation of life is unfair and unjust, the Section is unconstitutional. Having examined this argument with care and concern, we are of the opinion that it must be accepted and Section 303 of the Penal Code struck down.”

67)After quoting Maneka Gandhi (supra), Sunil Batra vs. Delhi Administration (1978) 4 SCC 494 and Bachan Singh (supra), this Court opined:

“19…To prescribe a mandatory sentence of death for the second of such offences for the reason that the offender was under the sentence of life imprisonment for the first of such offences is arbitrary beyond the bounds of all reason. Assuming that Section 235(2) of the Criminal Procedure Code were applicable to the case and the court was under an obligation to hear the accused on the question of sentence, it would have to put some such question to the accused:

“You were sentenced to life imprisonment for the offence of forgery. You have committed a murder while you were under that sentence of life imprisonment. Why should you not be sentenced to death”

The question carries its own refutation. It highlights how arbitrary and irrational it is to provide for a mandatory sentence of death in such circumstances…”

23.On a consideration of the various circumstances which we have mentioned in this judgment, we are of the opinion that Section 303 of the Penal Code violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to procedure established by law. The section was originally conceived to discourage assaults by life convicts on the prison staff, but the legislature chose language which far exceeded its intention. The Section also assumes that life convicts are a dangerous breed of humanity as a class. That assumption is not supported by any scientific data. As observed by the Royal Commission in its Report on “Capital Punishment”

“There is a popular belief that prisoners serving a life sentence after conviction of murder form a specially troublesome and dangerous class. That is not so. Most find themselves in prison because they have yielded to temptation under the pressure of a combination of circumstances unlikely to recur.”

In Dilip Kumar Sharma v. State of M.P. this Court was not concerned with the question of the vires of Section 303, but Sarkaria, J., in his concurring judgment, described the vast sweep of that Section by saying that “the section is Draconian in severity, relentless and inexorable in operation” [SCC para 22, p. 567: SCC (Cri) p. 92]. We strike down Section 303 of the Penal Code as unconstitutional and declare it void. It is needless to add that all cases of murder will now fall under Section 302 of the Penal Code and there shall be no mandatory sentence of death for the offence of murder.”

68)Chinnappa Reddy, J., concurring with the above view, held thus:

“25. Judged in the light shed by Maneka Gandhi and Bachan Singh, it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable [sic irresuscitable] is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional.”

69)It is clear that since Section 303 IPC excludes judicial discretion, the Constitution Bench has concluded that such a law must necessarily be stigmatized as arbitrary and oppressive. It is further clear that no one should be deprived of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution regarding his life or personal liberty except according to the procedure established by law.

70)Taking guidance from the above principles and in the light of the ratio enunciated in Triveniben (supra), 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 (supra).

(ii)Insanity/Mental Illness/Schizophrenia

71)In this batch of cases, two convict prisoners prayed for commutation of death sentence into sentence of life imprisonment on the ground that the unconscionably long delay in deciding the mercy petition has caused the onset of chronic psychotic illness, and in view of this the execution of death sentence will be inhuman and against the well-established canons of human rights.

72)The principal question raised in those petitions is whether because of the aforementioned supervening events after the verdict of this Court confirming the death sentence, the infliction of the most extreme penalty in the circumstances of the case, violates the fundamental rights under Article 21. The petitioners have made it clear that they are not challenging the death sentence imposed by this Court. However, as on date, they are suffering from insanity/mental illness. In this background, let us consider whether the petitioners have made out a case for commutation to life sentence on the ground of insanity.

73)India is a member of the United Nations and has ratified the International Covenant on Civil and Political 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 2000/65 dated 27.04.2000 of the U.N.

Commission on Human Rights titled “The Question of Death Penalty” urges “all States that still maintain the death penalty…not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person”. It further elaborates:

“3. Urges all States that still maintain the death penalty:

(a)To comply fully with their obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, notably not to impose the death penalty for any but the most serious crimes and only pursuant to a final judgement rendered by an independent and impartial competent court, not to impose it for crimes committed by persons below 18 years of age, to exclude pregnant women from capital punishment and to ensure the right to a fair trial and the right to seek pardon or commutation of sentence;

(b)To ensure that the notion of “most serious crimes” does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non-violent financial crimes or for non-violent religious practice or expression of conscience;

(c)Not to enter any new reservations under article 6 of the International Covenant on Civil and Political Rights which may be contrary to the object and the purpose of the Covenant and to withdraw any such existing reservations, given that article 6 of the Covenant enshrines the minimum rules for the protection of the right to life and the generally accepted standards in this area;

(d)To observe the Safeguards guaranteeing protection of the rights of those facing the death penalty and to comply fully with their international obligations, in particular with those under the Vienna Convention on Consular Relations;

(e)Not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person;

(f)Not to execute any person as long as any related legal procedure, at the international or at the national level, is pending;

4.Calls upon all States that still maintain the death penalty:

(a)Progressively to restrict the number of offences for which the death penalty may be imposed;

(b)To establish a moratorium on executions, with a view to completely abolishing the death penalty;

(c)To make available to the public information with regard to the imposition of the death penalty;

5.Requests States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out;

6.Requests the Secretary-General to continue to submit to the Commission on Human Rights, at its fifty-seventh session, in consultation with Governments, specialized agencies and intergovernmental and non-governmental organizations, a yearly supplement on changes in law and practice concerning the death penalty worldwide to his quinquennial report on capital punishment and implementation of the Safeguards guaranteeing protection of the rights of those facing the death penalty;

7.Decides to continue consideration of the matter at its fifty-seventh session under the same agenda item.

66th meeting

26 April 2000”

74)Similarly, Clause 89 of the Report of the Special Rapporteur on Extra-Judicial 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 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 with international legal standards”.

75)United Nations General Assembly in its Sixty-second session, adopted a Resolution on 18.12.2007, which speaks about moratorium on the use of the death penalty. The following decisions are relevant:
“1. Expresses its deep concern about the continued application of the death penalty;

2.Calls upon all States that still maintain the death penalty:

(a)To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;
****** ***
76th plenary meeting 18 December 2007”

76)The following passage from the Commentary on the Laws of England by William Blackstone is relevant for our consideration:

“…In criminal cases therefore idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.”

77)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 are relevant for our purpose and are quoted hereinbelow:

“386. Condemned convicts developing insanity – When a convict under sentence of death develops insanity after conviction, the Superintendent shall stay the execution of the sentence of death and inform the District Magistrate, who shall submit immediately a report, through the Sessions Judge, for the orders of the State Government.

387.Postponement of execution in certain cases – The execution of a convict under sentence of death shall not be carried out on the date fixed if he is physically unfit to receive the punishment, but shall not be postponed unless the illness is both serious and acute (i.e. not chronic). A report giving full particulars of the illness necessitating postponement of execution should at once be made to the Secretary to the State Government, Judicial (A) Department for the orders of the Government.”

Similar provisions are available in Prison Manuals of other States in India.

78)The above 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 commuted to life imprisonment. To put it clear, “insanity” is a relevant supervening factor for consideration by this Court.

79)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 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. Learned counsel also relied on United Nations Resolution against execution of death sentence, debate of the General Assembly, the decisions of International Court of Justice, Treaties, European Conventions, 8th amendment in the United States which prohibits execution of death sentence on an insane person. In view of the well established laws both at national as well as international sphere, we are inclined to consider insanity as one of the supervening circumstances that warrants for commutation of death sentence to life imprisonment.

(iii) Solitary Confinement

80)Another supervening circumstance, which most of the petitioners appealed in their petitions is the ground of solitary confinement. The grievance of some of the petitioners herein is that they were confined in solitary confinement from the date of imposition of death sentence by the Sessions Court which is contrary to the provisions of the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, Prisons Act and Articles 14, 19 and 21 of the Constitution and it is certainly a form of torture. However, the respective States, in their counter affidavits and in oral submissions, have out rightly denied having kept any of the petitioners herein in solitary confinement in violation of existing laws. It was further submitted that they were kept separately from the other prisoners for safety purposes. In other words, they were kept in statutory segregation and not per se in solitary confinement.

81)Similar line of arguments were advanced in Sunil Batra vs. Delhi Administration and Ors. etc. (1978) 4 SCC 494, wherein this Court held as under:-

“87. The propositions of law canvassed in Batra’s case turn on what is solitary confinement as a punishment and what is non-punitive custodial isolation of a prisoner awaiting execution. And secondly, if what is inflicted is, in effect, ‘solitary’, does Section 30(2) of the Act authorise it, and, if it does, is such a rigorous regimen constitutional. In one sense, these questions are pushed to the background, because Batra’s submission is that he is not ‘under sentence of death’ within the scope of Section 30 until the Supreme Court has affirmed and Presidential mercy has dried up by a final ‘nay’. Batra has been sentenced to death by the Sessions Court. The sentence has since been confirmed, but the appeal for Presidential commutation are ordinarily precedent to the hangmen’s lethal move, and remain to be gone through. 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 insulation inflicted by the Prison Superintendent on the petitioner 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, I.P.C. carry with it a supplementary secret clause of solitary confinement. What warrant then exists 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) Cr.P.C. 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 comingling, 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’.

88. 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 the Legislature cannot be intended to permit preventive solitary confinement, released even from the restrictions of Section 73 and 74 I.P.C., 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.

89. For a fuller comprehension of the legal provisions and their construction we may have to quote the relevant sections and thereafter make a laboratory dissection thereof to get an understanding of the components which make up the legislative sanction for semi-solitary detention of Shri Batra. Section 30 of the Prisons Act rules :

30.(1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Deputy Superintendent, and all articles shall be taken from him which the Deputy Superintendent deems it dangerous or inexpedient to leave in his possession.

(2)Every such prisoner, shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under charge of a guard.

This falls in Chapter V relating to discipline of prisoners and has to be read in that context. Any separate confinement contemplated in Section 30(2) has this disciplinary limitation as we will presently see. If we pull to pieces the whole provision it becomes clear that Section 30 can be applied only to a prisoner “under sentence of death”. Section 30(2) which speaks of “such” prisoners necessarily relates to prisoners under sentence of death. We have to discover when we can designate a prisoner as one under sentence of death.

90. The next attempt is to discern the meaning of confinement “in a cell apart from all other prisoners”. The purpose is to maintain discipline and discipline is to avoid disorder, fight and other untoward incidents, if apprehended.

91. Confinement inside a prison does not necessarily import cellular isolation. Segregation of one person all alone in a single cell is solitary confinement. That is a separate punishment which the Court alone can impose. It would be a subversion of this statutory provision (Section 73 and 74 I.P.C.) 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.

92. 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.

93. “Apart from all other prisoners” used in Section 30(2) is also a phrase of flexible import. ‘Apart’ has the sense of ‘To one side, aside,… apart from each other, separately in action or function’ (Shorter Oxford English Dictionary). Segregation into an isolated cell is not warranted by the word. All that it connotes is that in a cell where there are a plurality of inmates the death sentencees will have to be kept separated from the rest in the same cell but not too close to the others. And this separation can be effectively achieved because the condemned prisoner will be placed under the charge of a guard by day and by night. The guard will thus stand in between the several inmates and the condemned prisoner. Such a meaning preserves the disciplinary purpose and avoids punitive harshness. Viewed functionally, the separation is authorised, not obligated. That is to say, if discipline needs it the authority shall be entitled to and the prisoner shall be liable to separate keeping within the same cell as explained above. “Shall” means, in this disciplinary context, “shall be liable to”. If the condemned prisoner is docile and needs the attention of fellow prisoners nothing forbids the jailor from giving him that facility.

96. Solitary confinement has the severest sting and is awardable only by Court. To island a human being, to keep him incommunicado from his fellows is the story of the Andamans under the British, of Napoleon in St. Helena ! The anguish of aloneness has already been dealt with by me and I hold that Section 30(2) provides no alibi for any form of solitary or separated cellular tenancy for the death sentence, save to the extent indicated.

111.In my judgment Section 30(2) does not validate the State’s treatment of Batra. To argue that it is not solitary confinement since visitors are allowed, doctors and officials come and a guard stands by is not to take it out of the category.”

82)It was, therefore, held that the solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for 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 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 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 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’.

83)Even in Triveniben (supra), this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra (supra) and would amount to inflicting “additional and separate” punishment not authorized by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the jail authorities to comprehend and implement the actual intent of the verdict in Sunil Batra (supra).

84)As far as this batch of cases is concerned, we are not inclined to interfere on this ground.

(iv) Judgments Declared Per Incuriam

85)Many counsels, while adverting to the cause of the petitioners, complained that either the trial court or the High Court relied on/adverted to certain earlier decisions which were either doubted or held per incuriam such as Machhi Singh vs. State of Punjab (1983) 3 SCC 470, Ravji alias Ramchandra vs. State of Rajasthan (1996) 2 SCC 175, Sushil Murmu vs. State of Jharkhand (2004) 2 SCC 338, Dhananjoy Chatterjee vs. State of W.B. (1994) 2 SCC 220, State of U.P. vs. Dharmendra Singh (1999) 8 SCC 325 and Surja Ram vs. State of Rajasthan (1996) 6 SCC 271. Therefore, it is the claim of the petitioners herein that this aspect constitutes a supervening circumstance that warrants for commutation of sentence of death to life imprisonment.

86)It is the stand of few of the petitioners herein that the guidelines issued in Machhi Singh (supra) are contrary to the law laid down in Bachan Singh (supra). Therefore, in three decisions, viz., Swamy Shraddananda (2) vs. State of Karnataka (2008) 13 SCC 767, Sangeet and Another vs. State of Haryana (2013) 2 SCC 452 and Gurvail Singh vs. State of Punjab (2013) 2 SCC 713 the verdict pronounced by Machhi Singh (supra) is held to be per incuriam.

87)In the light of the above stand, we carefully scrutinized those decisions. Even in Machhi Singh (supra), paragraphs 33 to 37 included certain aspects, viz., I. manner of commission of murder; II. motive for commission of murder; III. anti-social or socially abhorrent nature of the crime; IV. magnitude of crime and V. personality of victim of murder. Ultimately, in paragraph 38, this Court referred to the guidelines prescribed in Bachan Singh (supra). In other words, Machhi Singh (supra), after noting the propositions emerged from Bachan Singh (supra), considered the individual appeals and disposed of the same. In this regard, it is useful to refer a three-Judge Bench decision of this Court in Swamy Shraddananda (2) (supra). The Bench considered the principles enunciated in Machhi Singh (supra), Bachan Singh (supra) and after analyzing the subsequent decisions, came to the conclusion in paragraph 48:

“48…It is noted above that Bachan Singh laid down the principle of the rarest of rare cases. Machhi Singh, for practical application crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for imposing death penalty. But the unfortunate reality is that in later decisions neither the rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently.”

88) Except the above observations, the three-Judge Bench has nowhere discarded Machhi Singh (supra). In other words, we are of the view that the three-Judge Bench considered and clarified the principles/guidelines in Machhi Singh (supra). It is also relied by the majority in Triveniben (supra). As regards other cases, in view of the factual position, they must be read in consonance with the three-Judge Bench and the Constitution Bench.

89)As pointed out by learned ASG for the Union of India, no decision mentioned above was found to be erroneous or wrongly decided. However, due to various factual situations, certain decisions were clarified and not applied to the facts of the peculiar case. In these circumstances, we are of the view that there is no need to give importance to the arguments relating to per incuriam.

(v) Procedural Lapses

90)The last supervening circumstance averred by the petitioners herein is the ground of procedural lapses. It is the claim of the petitioners herein that the prescribed procedure for disposal of mercy petitions was not duly followed in these cases and the lapse in following the prescribed rules have caused serious injustice to both the accused (the petitioners herein) and their family members.

91)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 death to submit a petition for mercy within seven days 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 this Rule, such petitions 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 execution of sentence shall in all cases be postponed pending receipt of orders on the same. Rule III 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, 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 case 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 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. 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 letters, in the case of Delhi and by telegraph in all other cases and receipt thereof shall be acknowledged by express letter or telegraph, as the case may be. Rule VIII(a) enables the convict that if there is a change of circumstance or if any new material is available in respect of rejection of his earlier mercy petition, he is free to make fresh application to the President for reconsideration of the earlier order.

92)Specific instructions relating to the duties of Superintendents of Jail in connection with the petitions for mercy for or on behalf of the convicts under sentence of death have been issued. Rule I mandates that immediately on receipt of warrant of execution, consequent on the confirmation by the High Court of the sentence of death, the Jail Superintendent shall inform the convict concerned that if he wishes to appeal to the Supreme Court or to make an application for special leave to appeal to the Supreme Court under any of the relevant provisions of the Constitution of India, he/she should do so within the period prescribed in the Supreme Court Rules. Rule II makes it clear that, on receipt of the intimation of the dismissal by the Supreme Court of the appeal or the application for special leave to appeal filed by or on behalf of the convict, in case the convict concerned has made no previous petition for mercy, the Jail Superintendent shall forthwith inform him that if he desires to submit a petition for mercy, it should be submitted in writing within seven days of the date of such intimation. Rule III says that if the convict submits a petition within the period of seven days prescribed by Rule II, it should be addressed, 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, to the President of India. The Superintendent of Jail shall forthwith dispatch it to the Secretary to the State Government in the Department concerned or the Lt. Governor/Chief Commissioner/Administrator, as the case may be, together with a covering letter reporting the date fixed for execution and shall certify that the execution has been stayed pending receipt of orders of the Government on the petition. Rule IV mandates that if the convict submits petition after the period prescribed by Rule II, the Superintendent of Jail shall, at once, forward it to the State Government and at the same time telegraphed the substance of it requesting orders whether execution should be postponed stating that pending reply sentence will not be carried out.

93)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”.

94)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.

95)Extracts from Prison Manuals of various States applicable for the disposal of mercy petitions have been placed before us. Every State has separate Prison Manual which speaks about detailed procedure, receipt placing required materials for approval of the Home Minister and the President for taking decision expeditiously. 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.

96)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 piece-meal records instead of all the materials connected with the conviction should be deprecated. When the matter is placed before the President, it is incumbent upon 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 piece meal.

97)At the time of considering individual cases, we will test whether those Rules have been strictly complied with or not on individual basis.

Analysis on Case-to-Case Basis

Writ Petition (Crl.) Nos. 55 and 132 of 2013

98)Mr. Shatrughan Chauhan and Mr. Mahinder Chauhan, family members of death convicts – Suresh and Ramji have filed Writ Petition (Crl.) No. 55 of 2013. Subsequent to the filing of the Writ Petition (Crl.) No. 55 of 2013 by the family members, the death convicts themselves, viz., Suresh and Ramji, aged 60 years and 45 years respectively, belonging to the State of Uttar Pradesh, filed Writ Petition (Crl.) No. 132 of the 2013.

99)On 19.12.1997, the petitioners were convicted under Section 302 IPC for the murder of five family members of the first petitioner’s brother for which they were awarded death sentence. On 23.02.2000, the Allahabad High Court confirmed their conviction and death sentence and, subsequently this Court dismissed their Criminal Appeal being No. 821 of 2000, vide judgment dated 02.03.2001.

100)On 09.03.2001 and 29.04.2001, the first and the second petitioners herein filed mercy petitions respectively addressed to the Governor/President of India. On 28.03.2001, Respondent No. 2–State of Uttar Pradesh wrote to the prison authorities seeking information inter alia on the conduct of the first petitioner in prison. On 05.04.2001, the prison authorities informed Respondent No. 2 about his good conduct.

101)On 18.04.2001, this Court dismissed the Review Petition (Crl.) being No. 416 of 2001 which was filed on 30.03.2001.

102)On 22.04.2001, Respondent No. 1–Union of India wrote to Respondent No. 2 asking for the record of the case and for information on whether mercy petition has been rejected by the Governor. Meanwhile, other mercy petitions were received by Respondent No. 1. There is no reference in the affidavit of Respondent No. 1 that the same were forwarded to Respondent No. 2 for consideration.

103)On 04.05.2001, Respondent No. 2 wrote to the Government Advocate, District Varanasi asking for a copy of the trial court judgment, which information is available from the counter affidavit filed by Respondent No. 2. On 23.05.2001, Respondent No. 2 sent a reminder to the Government Advocate, District Varanasi to send a copy of the trial court judgment. On 04.09.2001, the District Magistrate, Varanasi informed Respondent No. 2 that it is not possible to get a copy of the trial court judgment as all the papers are lying in the Supreme Court.

104)On 13.12.2001, without obtaining a copy of the trial court judgment, Respondent No. 2 advised the Governor to reject the mercy petition. On 18.12.2001, the Governor rejected the mercy petition after taking nine months’ time. On 22.01.2002, Respondent No. 2 informed Respondent No. 1 that the Governor has rejected the petitioners’ mercy petition. It is the grievance of the petitioners that neither the petitioners nor their family members were informed about the rejection.

105)On 28.03.2002, Respondent No. 1 wrote to Respondent No. 2 seeking copy of the trial court judgment. On 12.06.2002, the judgment of the trial court was furnished by Respondent No. 2 to Respondent No. 1.

106)Rule V of the Mercy Petition Rules which exclusively provides that the mercy petition should be sent along with the judgments and related documents immediately, states as follows:

“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”.

107)There is no explanation for the delay of about five months in sending the papers to Respondent No. 1. On 07.12.2002, Respondent No. 2 wrote to Respondent No. 1 seeking information about the status of the petitioners’ mercy petition. Twelve reminders were sent between 17.01.2003 and 14.12.2005.

108)On 27.07.2003, Respondent No. 4-Superintendent of Jail, in accordance with the provisions of the U.P. Jail Manual, wrote to Respondent No. 2 seeking information about the petitioners’ pending mercy petitions. Thereafter, twenty-seven reminders were sent by the prison authorities between 29.09.2003 and 29.05.2006.

109)On 08.04.2004, Respondent No. 1 advised the President to reject the mercy petition. On 21.07.2004, the President returned the petitioners’ file (along with the files of ten other death-row convicts) to Respondent No. 1 for the advice of the new Home Minister. On 20.06.2005, Respondent No. 1 advised the President to reject the mercy petitions. On 24.12.2010, Respondent No. 1 recalled the files from the President. On 13.01.2011, the said files were received from the President. On 19.02.2011, Respondent No. 1 advised the President to reject the mercy petition.

110)On 14.11.2011, Respondent No. 2 wrote to Respondent No. 1 seeking information about the status of the petitioners’ mercy petitions.

111)On 29.10.2012, the President returned the file for the advice of the new Home Minister. On 16.01.2013, Respondent No. 1 advised the President to reject the mercy petition. On 08.02.2013, the President rejected the mercy petitions.

112)On 05.04.2013, the petitioners heard the news reports that their mercy petitions have been rejected by the President of India. It is asserted that they have not received any written confirmation till this date.

113)On 06.04.2013, the petitioners authorized their family members, viz. Mr. Shatrughan Chauhan and Mr. Mahinder Chauhan, to file an urgent writ petition in this Court, which was ultimately numbered as Writ Petition (Crl.) No. 55 of 2013. By order dated 06.04.2013, this Court stayed the execution of the petitioners. Only on 20.06.2013, the prison authorities informed vide letter dated 18.06.2013 that the petitioners’ mercy petitions have been rejected by the President.

114)All the above details have been culled out from the writ petitions filed by the petitioners and the counter affidavit filed on behalf of the Union of India as well as the State of Uttar Pradesh. The following are the details relating to disposal of mercy petitions by the Governor and the President:

115)There is no dispute that these petitioners killed five members of their family – two adults and three children over property dispute. It is a heinous crime and they were awarded death sentence which was also confirmed by this Court. However, the details furnished in the form of affidavits by the petitioners, counter affidavit filed by Respondent Nos. 1 and 2 as well as the records produced by Mr. Luthra, learned Additional Solicitor General, clearly show that there was a delay of twelve years in disposal of their mercy petitions. To put it clear, the Governor of Uttar Pradesh took around ten months to reject the mercy petitions (09.03.2001 to 28.01.2002) and the President rejected the petitions with a delay of eleven years (28.01.2002 to 08.02.2013). We also verified the summary prepared by the Ministry of Home Affairs for the President and the connected papers placed by learned ASG wherein no discussion with regard to the same was attributed to.

116)On going through various details, stages and considerations and in the light of various principles discussed above and also of the fact that this Court has accepted in a series of decisions that undue and unexplained delay in execution is one of the supervening circumstances, we hold that in the absence of proper, plausible and acceptable reasons for the delay, the delay of twelve years in considering the mercy petitions is a relevant ground for the commutation of death sentence into life imprisonment. We are also satisfied that the summary prepared by the Ministry of Home Affairs for the President makes no mention of twelve years’ delay much less any plausible reason. Accordingly, both the death convicts – Suresh and Ramji have made out a case for commutation of their death sentence into life imprisonment.

Writ Petition (Crl.) No. 34 of 2013

117)This writ petition is filed by Shamik Narain which relates to four death convicts, viz., Bilavendran, Simon, Gnanprakasam and Madiah aged 55 years, 50 years, 60 years and 64 years respectively.

118)The case emanates from the State of Karnataka. According to the petitioners, the accused persons are in custody for nearly 19 years and 7 months. All the persons were charged under IPC as well as under the provisions of the TADA. By judgment dated 29.09.2001, the Designated TADA Court, Mysore convicted the accused persons for the offence punishable under TADA as well as IPC and the Arms Act and sentenced them inter alia to undergo rigorous imprisonment for life.

119)All the accused persons preferred Criminal Appeal being Nos. 149-150 of 2002 before this Court which were admitted by this Court. The State of Karnataka also filed a Criminal Appeal being No. 34 of 2003 against the judgment dated 29.09.2001 praying for enhancement of sentence from life imprisonment to death sentence. On 09.01.2003, this Court refused to accept the claim of the State of Karnataka and dismissed its appeal on the ground of limitation. However, this Court, by judgment and order dated 29.01.2004, suo motu enhanced the sentence of the accused persons from life imprisonment to death. In the same order, this Court confirmed the conviction and sentence imposed by the TADA Court and dismissed the appeals preferred by the accused.

120)On 12.02.2004, separate mercy petitions were filed by the petitioners and the Superintendent, Central Jail, Belgaum forwarded the same to Respondent No. 1.

121)On 29.04.2004, the review petitions filed by the petitioners were also dismissed by this Court.

122)On 29.07.2004, the Governor rejected the mercy petitions and, according to the petitioners, they were never informed about the same.

123)On 07.08.2004, Respondent No. 2 forwarded the mercy petitions to Respondent No. 1 which were received on 16.08.2004. Here again, there is no explanation for the delay of six months from 12.02.2004, when the mercy petitions were first forwarded to Respondent No. 1.

124)On 19.08.2004, Respondent No. 1 requested Respondent No. 2 for a copy of the trial court judgment. Here again, the trial court judgment and other relevant documents should have been sent to Respondent No. 1 along with the mercy petitions. We have already extracted Rule V of the Mercy Petition Rules relating to forwarding of the required materials as expeditiously as possible. On 30.08.2004, Respondent No. 2 sent a copy of the trial court judgment to Respondent No. 1 which was received on 09.09.2004.

125)On 18.10.2004, the petitioners’ gang leader Veerappan was killed in an encounter by a Special Task Force and his gang disbanded.

126)On 29.04.2005, the Home Minister advised the President to reject the mercy petitions. There was no further progress in the petitions till the files were recalled from the President and received back in the Ministry of Home Affairs, i.e., six years later on 16.05.2011. Though separate counter affidavit has been filed by Respondent No. 1, there is no explanation whatsoever for the delay of six years. Learned counsel for the petitioners pointed out that it is pertinent to take note of the fact that two consecutive Presidents had deemed it fit not to act on the advice suggested. In any event, this procrastination violated the petitioners’ right under Article 21 of the Constitution by inflicting six additional years of imprisonment under the constant fear of imminent death not authorized by judgment of any court.

127)On 28.02.2006, Curative Petition being No. 6 of 2006 was dismissed by this Court.

128)In the meanwhile, letters were sent by the petitioners to the President of India highlighting their grievance about their procrastination for about last twelve years. The information furnished by the Ministry of Home Affairs under the Right to Information Act shows that mercy petitions submitted after the petitions of the petitioners were given priority and decided earlier while the mercy petitions of the petitioners were kept pending.

129)On 16.05.2011, the mercy petitions were recalled by Respondent No. 1 from the President. Here again, there is no explanation for the delay of six years. On 25.05.2011, the Home Minister advised the President for the second time to reject the mercy petition. On 19.11.2012, the President returned the file stating that the views of the new Home Minister may be ascertained. Here again, there is no explanation for the delay of 1 ½ years while the file was pending with the President. On 16.01.2013, the Home Minister advised the President for the third time to reject the mercy petitions. On 08.02.2013, the President rejected the mercy petitions and Respondent No. 2 was informed vide letter dated 09.02.2013.

130)It is the grievance of the petitioners that though they were informed orally and signatures were obtained, the prison authorities refused to hand over the copy of the rejection letter to them or to their advocate. The details regarding delay in this matter are as follows:

131)The delay of six months (12.02.2004 – 07.08.2004) when the mercy petitions were being considered by the Governor is attributed to Respondent No. 1 because the mercy petition had been sent to Respondent No. 1 on 12.02.2004 and also because Respondent No. 2/Governor did not have jurisdiction to entertain the mercy petitions and even if clemency had been granted, it would have been null and void.

132)From the particulars furnished by the petitioners as well as the details mentioned in the counter affidavit of Respondent Nos. 1 and 2, we are satisfied that the delay of nine years in disposal of their mercy petitions is unreasonable and no proper explanation has been offered for the same. Apart from the delay in question, according to us, it is important to note that delay is undue and unexplained. Certain other aspects also support the case of the petitioners for commutation.

133)We have already mentioned that on 29.01.2004, this Court, by its judgment and order, suo motu enhanced the sentence from life imprisonment to death. It is relevant to point out that when the State preferred an appeal for enhancement of the sentence from life to death, this Court rejected the claim of the State, however, this Court suo motu enhanced the same and the fact remains that the appeal filed by the State for enhancement was rejected by this Court.

134)In the earlier part of our discussion, we have already held that the decision in Devender Pal Singh Bhullar (supra), holding that the cases pertaining to offences under TADA have to be treated differently and on the ground of delay in disposal of mercy petition the death sentence cannot be commuted, is per incuriam. Further, this Court in Yakub Memon vs. State of Maharashtra (Criminal Appeal No. 1728 of 2007) delivered on 21.03.2013 and in subsequent cases commuted the death sentence passed in TADA case to imprisonment for life.

135)Taking note of these aspects, viz., their age, in custody for nearly twenty years, unexplained delay of nine years in disposal of mercy petitions coupled with other reasons and also of the fact that the summary prepared by the Ministry of Home Affairs for the President makes no mention of the delay of 9 ½ years and also in the light of the principles enunciated in the earlier paragraphs, we hold that the petitioners have made out a case for commutation of death sentence to imprisonment for life.

Writ Petition (Crl.)No. 187 of 2013

136)Praveen Kumar, aged about 55 years, hailing from Karnataka, has filed this petition. He was charged for murdering four members of a family and ultimately by judgment dated 05.02.2002, he was convicted under Sections 302, 392 and 397 IPC and sentenced to death. The petitioner was defended on legal aid.

137)By judgment dated 28.10.2002, death sentence was confirmed by the Division Bench of the High Court of Karnataka and by order dated 15.10.2003, this Court dismissed the appeal filed by the petitioner.

138)On 25.10.2003, the petitioner sent the mercy petition addressed to the President of India wherein he highlighted that he has been kept in solitary confinement since the judgment of the trial Court, i.e., 05.02.2002.

139)On 12.12.2003, Respondent No. 1 requested Respondent No. 2 to consider the petitioner’s mercy petition under Article 161 of the Constitution and intimate the decision along with the copies of the judgment of the trial Court, High Court, police diary and court proceedings. Respondent No. 1 also received mercy petition signed by 260 persons. By order dated 15.09.2004, the Governor rejected the mercy petition. On 30.09.2004, Respondent No. 2 informed Respondent No. 1 that the petitioner’s mercy petition has been rejected by the Governor.

140)On 18.10.2004, Respondent No. 1 requested Respondent No. 2 for the second time to send the judgment of the trial Court along with the police diary and court proceedings. On 20.12.2004, according to Respondent No. 1, Respondent No. 2 sent the requested documents to Respondent No. 1 but Respondent No. 1 claimed that the same were in Kannada. On 07.01.2005, Respondent No. 1 returned the documents sent by Respondent No. 2 with a request to provide English translation. The State Government was again reminded in this regard on 05.04.2005, 20.04.2005, 04.06.2005 and 21.07.2005. Even after these reminders, the translated documents were not sent.

141)On 06.09.2005, the mercy petition of the petitioner- Praveen Kumar was processed and examined without waiting for the copy of the judgment of the trial Court and submitted for consideration of the Home Minister. The Home Minister approved the rejection of the mercy petition. On 07.09.2005, Respondent No. 1 advised the President to reject the petitioner’s mercy petition. On 14.03.2006, Respondent No. 2 sent the translated documents to Respondent No. 1.

142)On 20.08.2006, the petitioner wrote to the President referring to his earlier mercy petition dated 25.10.2003 stating that for the last four years and seven months he has been languishing in solitary confinement under constant fear of death.

143)On 29.09.2006, the petitioner wrote to the Chief Minister of Karnataka referring to his earlier mercy petition dated 25.10.2003 highlighting the same grievance.

144)The information received under RTI Act shows that mercy petitions submitted after the petition of the petitioner were given priority and decided earlier while the mercy petition of the petitioner was kept pending.

145)On 01.07.2011, the petitioner’s mercy petition was recalled from the President and received by Respondent No. 1 and thereafter it remained pending consideration of the President of India for five years and 10 months. There is no explanation for this inordinate delay.

146)On 14.07.2011, Respondent No. 1 advised the President to reject the petitioner’s mercy petition. The file remained with the President till 29.10.2012, i.e. for 1 year 3 months and no explanation was offered for this delay.

147) On 29.10.2012, the President returned the petitioner’s mercy petition to Respondent No. 1 ostensibly on the ground of an appeal made by 14 former Judges. However, this appeal, as is admitted in the counter affidavit filed by Respondent No. 1 itself, “had not indicated any plea in respect of Praveen Kumar”. On 16.01.2013, Respondent No. 1 advised the President to reject the petitioner’s mercy petition.

148)On 26.03.2013, the President rejected the petitioner’s mercy petition. On 05.04.2013, the petitioner heard news reports that his mercy petition has been rejected by the President of India. He has not received any written confirmation of the same till date.

149)On 06.04.2013, this Court stayed the execution of the sentence in Writ Petition (Crl.) No. 56 of 2013 filed by PUDR. The following details show the delay in disposal of petitioner’s mercy petition by the Governor and the President:

150)Though learned counsel for the petitioner highlighted that the trial Court relied on certain decisions which were later held to be per incuriam, in view of the fact that there is a delay of 9½ years in disposal of the mercy petition, there is no need to go into the aspect relating to the merits of the judicial decision. On the other hand, we are satisfied that even though the Union of India has filed counter affidavit, there is no explanation for the huge delay. Accordingly, we hold that the delay in disposal of the mercy petition is one of the relevant circumstances for commutation of death sentence. Further, we perused the notes prepared by the Ministry of Home Affairs as well as the decision taken by the President. The summary prepared by the Ministry of Home Affairs for the President makes no mention of the unexplained and undue delay of 9 ½ years in considering the mercy petition. The petitioner has rightly made out a case for commutation of death sentence into life imprisonment.

Writ Petition (Crl.)No. 193 of 2013

151)Gurmeet Singh, aged about 56 years, hailing from U.P. has filed this petition. According to him, he is in custody for 26 years.

152)The allegation against the petitioner is that he murdered 13 members of his family on 17.08.1986. By order dated 20.07.1992, the trial Court convicted the petitioner under Sections 302, 307 read with Section 34 IPC and awarded death sentence.

153)On 28.04.1994, the Division Bench of the Allahabad High Court pronounced the judgment in the petitioner’s Criminal Appeal No. 1333 of 1992. The two Hon’ble Judges disagreed with each other on the question of guilt, Malviya, J. upheld the petitioner’s conviction and death sentence and dismissed his appeal, while Prasad, J. acquitted the petitioner herein and allowed his appeal.

154)On 29.02.1996, in terms of Section 392 of the Code, the papers were placed before a third Judge (Singh, J.), who agreed with Malviya, J. and upheld the petitioner’s conviction and sentence.

155)On 08.03.1996, the Division Bench dismissed the appeal of the petitioner herein and confirmed his death sentence.

156)On 28.09.2005, this Court dismissed the petitioner’s appeal and upheld the death sentence passed on him. The petitioner was represented on legal aid.

157)On 06.10.2005, the petitioner sent separate mercy petitions through jail addressed to the President of India and the Governor of Uttar Pradesh.

158)On 24.12.2005, the Prison Superintendent sent a radiogram to Respondent No. 2 reminding about the pendency of the mercy petition. Thereafter, 10 radiograms/letters were sent till 16.05.2006. These 11 reminders are itself testimony of the unreasonable delay by the State Government in deciding the petitioner’s mercy petition.

159)On 04.04.2006, the Governor rejected the petitioner’s mercy petition.

160)On 26.05.2006, the fact of the rejection by the Governor was communicated to Respondent No. 1 and to the Prison authorities after a delay of more than 1½ months.

161)On 16.06.2006, the President forwarded to Respondent No. 1 letter dated 02.06.2006 of the Additional District & Sessions Judge, Shahjahanpur, addressed to Respondent No. 2 requesting to intimate the status of the petitioner’s mercy petition pending before the President.

162)On 07.07.2006, Respondent No. 1 forwarded the letter of the Additional District and Sessions Judge to Respondent No. 2 with a request to forward the petitioner’s mercy petition as the same has not been received along with the judgment of the courts, police diary etc.

163)On 09.02.2007, Respondent No. 2 sent the mercy petition and other related documents to Respondent No. 1, i.e., 10 months after the mercy petition was rejected by the Governor. The Mercy Petition Rules, which we have already extracted in the earlier part, explicitly provide that the mercy petition and the related documents should be sent immediately. There is no explanation for the delay of 10 months in sending the papers to Respondent No. 1.

164)On 18.05.2007, Respondent No. 1 advised the President to reject the petitioner’s mercy petition.

165)On 04.11.2009, the petitioner’s mercy petition file was received from the President’s office by Respondent No. 1.

166)Again on 09.12.2009, Respondent No. 1 advised the President to reject the petitioner’s mercy petition. There was no progress in the petitioner’s case for the next 2 years and 11 months, i.e., till 29.10.2012.

167)On 29.10.2012, the President returned the petitioner’s mercy petition to Respondent No. 1, ostensibly on the pretext of an appeal made by 14 former judges, even though, as is admitted in the counter affidavit filed by Respondent No. 1, this appeal does not in any way relate to the case of the petitioner.

168)On 16.01.2013, Respondent No. 1 advised the President to reject the petitioner’s mercy petition.

169)On 01.03.2013, the President of India rejected the petitioner’s mercy petition.

170)On 05.04.2013, the petitioner heard the news reports that his mercy petition has been rejected by the President of India. However, till date the petitioner has not received any official written communication that his mercy petition has been rejected either by the Governor or by the President.

171)On 06.04.2013, this Court stayed the execution of the death sentence of the petitioner in W.P. (Crl.) No. 56 of 2013 filed by the Peoples’ Union for Democratic Rights (PUDR).

172)On 20.06.2013, 3 ½ months after the actual rejection of the petitioner’s mercy petition, the news was communicated to the prison authorities. The following are the details regarding the delay in disposal of mercy petition by the Governor and the President:

The above details clearly show that there is a delay of 7 years 8 months in disposal of mercy petition by the Governor and the President.

173)Though Respondent No. 1 has filed a separate counter affidavit, there is no acceptable reason for the delay of 7 years 8 months. In the absence of adequate materials for such a huge delay, we hold that the delay is undue and unexplained.

174)In the file of the Home Ministry placed before us, at pages 31 & 32, the following recommendations have been made for commutation of death sentence to life imprisonment which are as under:

“I think that in this case too, we can recommend commutation of death sentence to life imprisonment for two reasons:

1)There was a disagreement amongst the Hon. Judges of the High Court implying thereby that there was some doubt in the mind of at least one Hon. Judge that this might not be the ‘rarest of the rare cases’.

2)Unusual long delay in investigation and trial is another reason. This kind of submission was also made by the learned amicus curiae but was disregarded by the Court. I think the submission should have been accepted.

Accordingly, I suggest that we may recommend that the death sentence of Sh. Gurmeet Singh be commuted to that of life imprisonment but he would not be allowed to come out of prison till he lives.
Sd/-“

However, this was not agreed to by the Home Minister.

175)In view of the reasons and discussion in the earlier part of our order, the petitioner-convict is entitled to commutation of death sentence into life imprisonment. Even in the summary prepared by the Ministry of Home Affairs for the President makes no mention of the delay of 7 years 8 months. We are satisfied that the petitioner has made out a case for commutation of death sentence into life imprisonment.

Writ Petition (Crl.) No. 188 of 2013

176)Sonia and Sanjeev Kumar, aged about 30 and 38 years respectively, hailing from Haryana, have filed this petition. According to them, they are in custody for about 12 years.

177)On 27.05.2004, both of them were convicted for the offence punishable under Section 302 and sentenced to death by the trial Court. By order dated 12.04.2005, the High Court confirmed their conviction but modified their sentence of death into life imprisonment. The order of the High Court was challenged before this Court in Criminal Appeal No. 142 of 2005 and Criminal Appeal No. 894 of 2005 and Criminal Appeal No. 895 of 2006. By order dated 15.02.2007, this Court upheld their conviction and enhanced the imprisonment for life to death sentence.

178)In February, 2007, the petitioners filed a mercy petition before the Governor of Haryana. Similar mercy petitions were sent to the President.

179)On 23.08.2007, the Review Petitions being Nos. 260-262 of 2007 filed by the petitioners were dismissed.

180)On 31.10.2007, Respondent No. 2 informed Respondent No. 1 that the mercy petitions filed by the petitioners have been rejected by the Governor of Haryana and forwarded the relevant documents.

181)On 08.02.2008, Respondent No. 1 advised the President to reject the petitioner’s mercy petitions. The mercy petitions remained pending with the President till 16.04.2009.

182)On 16.04.2009, the President sent the petitioners’ file along with the first petitioner’s letter dated 17.02.2009 to reject their petitions conveying their difficult position to continue with their life to Respondent No. 1.

183)On 20.05.2009, Respondent No. 1 advised the President for the second time to reject the petitioners’ mercy petitions.

184)On 04.02.2010, the President returned the petitioners’ file to Respondent No. 1 seeking clarification whether the first petitioner’s request to reject the mercy petition amounts to withdrawal of original mercy petition and if so, is there further need to reject the petition? On 17.02.2010, Respondent No. 1 referred the President’s query to the Law Department. On 05.03.2010, Respondent No. 1 advised the President for the 3rd time to reject the petitioners’ mercy petitions. On 03.01.2012, upon the request of Respondent No. 1, the President returned the petitioners’ file to Respondent No. 1. On 18.01.2012, Respondent No. 1 advised the President for the 4th time to reject the petitioners’ mercy petitions.

185)On 29.10.2012, the President returned the petitioners’ file back to Respondent No. 1 in the light of the appeal made by 14 former judges. It is pointed out by learned counsel that admittedly the appeal was made for other prisoners and not for the petitioners and so there was no need to return the files.

186)On 29.01.2013, since it was found that the judges’ appeal did not pertain to the petitioners, Respondent No. 1 advised the President for the 5th time to reject the petitioners’ mercy petitions. On 21.02.2013, the petitioners, anxious for a decision on their mercy petitions, wrote to the President again reiterating their plea for mercy.

187)On 28.03.2013, the President returned the petitioners’ file to Respondent No. 1, supposedly on account of the petitioners’ letter dated 21.02.2013. On 06.06.2013, Respondent No. 1 advised the President for the 6th time to reject the petitioners’ mercy petitions “as no mitigating circumstance was found”. Finally, on 29.06.2013, the President rejected the petitioners’ mercy petitions.

188)On 13.07.2013, the petitioners’ family members received a letter dated 11.07.2013 from the prison authorities informing that the petitioners’ mercy petitions have been rejected by the President of India. The following are the details regarding the delay in disposal of the mercy petition by the Governor and the President:

189)In view of the above details as well as the explanation offered in the counter affidavit filed by Respondent No. 1, we hold that the delay in disposal of mercy petitions is undue and unexplained and in the light of our conclusion in the earlier part of our order, the unexplained and undue delay is one of the circumstances for commutation of death sentence into life imprisonment.

190)In addition, due to unbearable mental agony after confirmation of death sentence, petitioner No.1 attempted suicide. In view of our conclusion that the delay in disposal of mercy petitions is undue and unexplained, we hold that the petitioners have made out a case for commutation of death sentence into life imprisonment.

Writ Petition(Crl.)No. 192 of 2013

191)PUDR has filed this petition for Sundar Singh, who is hailing from Uttarkhand. On 30.06.2004, Sundar Singh was convicted by the Sessions Court under Sections 302, 307 and 436 IPC and sentenced to death. On 20.07.2005, the High Court confirmed the death sentence passed by the trial Court. On 16.09.2010, this Court dismissed the appeal filed by Sundar Singh through legal aid.

192)On 29.09.2010, Sundar Singh sent a mercy petition through jail authorities addressed to the President of India stating therein that he had committed the offence due to insanity and that he repented for the same each day and shall continue to do for the rest of his life.

193)On 29.09.2010, the prison authorities filled in a nominal roll for Sundar Singh in which they stated that Sundar Singh’s mental condition is abnormal. The said form was sent to Respondent Nos. 1 and 2. The prison authorities noticed that Sundar Singh’s behaviour had become extremely abnormal. He was initially treated for mental illness by the prison doctor and, thereafter, he was examined by doctors from the HMM District Hospital, Haridwar. Thereafter, when he continued to show signs of insanity, the prison authorities called a team of psychiatrists from the State Mental Institute, Dehradun to examine him. The psychiatrists found him to be suffering from schizophrenia and recommended that he be sent to Benaras Mental Hospital. On 15.10.2010, Sundar Singh was admitted to Benaras Mental Hospital and he remained there for 1 ½ years till his discharge on 28.07.2012 with further prescriptions and advice for follow up treatment.

194)On 19.10.2010, Respondent No. 1 informed Respondent No. 2 in writing that Sundar Singh’s mercy petition should be first sent to the Governor.

195)Based on the direction of Respondent No. 1, on 20.10.2010, the prison authorities forwarded the mercy petition of Sundar Singh to the Governor. On 21.01.2011, the Governor rejected the mercy petition of Sundar Singh and Respondent No. 2 forwarded the same to the President.

196)On 24.05.2011, Respondent No. 1 wrote to Respondent No. 2 asking for a copy of Sundar Singh’s nominal roll, medical record and crime record. On 01.06.2011, Respondent No. 2 sent Sundar Singh’s nominal roll and medical report to Respondent No. 1. In the covering letter, Respondent No. 2 informed Respondent No. 1 that Sundar Singh had been declared to be a mental patient by medical experts and was admitted to Varanasi Mental Hospital for treatment on 11.12.2010.

197)On 03.02.2012, Respondent No. 1 advised the President to reject the mercy petition filed by Sundar Singh. On 30.10.2012, the President returned the mercy petition of Sundar Singh ostensibly because of the petition sent by 14 former judges wherein there was a specific reference to the case of Sundar Singh.

198)On 28.12.2012, Sundar Singh was examined by a doctor in prison who noted that he was “suicidally inclined” and prescribed him very strong anti psychotic medicines. Despite that, on 01.02.2013, Respondent No. 1 advised the President to reject the mercy petition of Sundar Singh.

199)On 16.02.2013, the prison authorities again called a team of three psychiatrists from the State Mental Hospital, Dehradun, who examined Sundar Singh. In their report, they mentioned that Sundar Singh had already been diagnosed as suffering from undifferentiated schizophrenia. They noted that he was “unkempt and untidy, cooperative but not very much communicative” and his “speech is decreased in flow and content” and “at times is inappropriate and illogical to the question asked.” They concluded as follows:

“he is suffering from chronic psychotic illness and he needs long term management”.

The prison authorities sent this report to Respondent No. 1.

200)On 31.03.2013, the President rejected the mercy petition of Sundar Singh. On 02.04.2013, Respondent No. 1 informed Respondent No. 2 that the President has rejected the mercy petition of Sundar Singh. On 05.04.2013, Sundar Singh was orally informed by the prison authorities that his mercy petition had been rejected by the President but he did not appear to understand and did not react.

201)On 06.04.2013, this Court stayed the execution of death sentence of Sundar Singh in W.P.(Crl.) No. 56 of 2013 filed by PUDR.

202) On 31.10.2013, at the instance of the prison authorities, Dr. Arun Kumar, Neuro Psychiatrist from the State Mental Institute, Dehradun was brought to the prison to examine Sundar Singh. He opined as follows:

“Sundar Singh is suffering from schizophrenia (undifferentiated) and requires long term bed rest. He is not mentally fit to be awarded for death penalty.”

203)We have carefully perused all the details. Though there is a delay of only 2 ½ years in considering the mercy petition of Sundar Singh, the counter affidavit as well as various communications sent by the jail authorities clearly show that Sundar Singh was suffering from mental illness, i.e., Schizophrenia.

204)In the earlier part of our order, while considering “mental illness”, we have noted Rules 386 and 387 of the U.P. Jail Manual which are applicable to the State of Uttarakhand also, which clearly show that when condemned convict develops insanity, it is incumbent on the part of the Superintendent to stay the execution of sentence of death and inform the same to the District Magistrate. In the reply affidavit filed on behalf of Respondent Nos. 2-4 insofar as mental illness of the convict – Sundar Singh is concerned, it is stated as under:

“16. As far as illness of the convict Sunder Singh is concerned, he has been regularly medically examined as per the provisions of the jail manual, he was examined by Medical Officers of HMM District Hospital, Haridwar and thereafter on the recommendation of the Doctors of State Mental Health Institute, Dehradun, the Prisoner was sent to Mental Hospital, Varanasi on 15.10.2010 for examination and treatment.

17.Convict Sunder Singh was admitted in the Mental Hospital, Varansai for treatment and after his treatment, Board of Visitors under Chairpersonship of District Judge, Varansai, convict Sunder Singh was found fit and, therefore, they discharged the convict Sunder Singh along with certain prescription and advice on 28.7.2012 from Mental Hospital, Varanasi…

18.In pursuance of above advice of the Doctors of Mental Hospital, Varansai, on the request of the Jail Administration to State Mental Hospital, Selaqui, Dehradun, a panel of three Doctors visited on 16.2.2013 and examined the Convict Sunder Singh and opined that on the basis of information and present assessment, he is suffering from chronic psychiatric illness and he need long term treatment…

19.Convict has thereafter been regularly provided due medical assistance in the form of medicine and examination. On 31.10.2013, Dr. Arun Kumar, neuro psychiatric from State Mental Health Institute, Selaqui, Dehradun visited to the District Jail for examination of the Convict Sunder Singh and opined: Impression: Sunder Singh is suffering from Schizophrenia (undifferentiated) and require long term bed rest. He is not mentally fit to be awarded for death penalty…

20.On 5.11.2013, on the aforesaid report dated 31.10.2013, Chief Medical Superintendent, State Medical Health Institute Selaqui Dehradun, has been requested to send a panel of Doctors for thorough examination of the mental state of the said Prisoner Sunder Singh. Upon medical examination by a board of Doctors and receipt of the examination report the State and Jail Authorities shall act in accordance with law.

In view of the above submission, this Hon’ble Court may kindly pass appropriate orders disposing of the present petition. The answering respondent is duty bound to comply the orders passed by the Hon’ble Court.”

Along with the reply affidavit, the State has fairly enclosed the medical reports, various correspondence/intimation about the Schizophrenia of lunatic nature/mental illness of the petitioner suffering from Schizophrenia. Further, even on 24.05.2011, the Government of India, Ministry of Home Affairs, after receipt of mercy petition of the condemned prisoner – Sundar Singh requested the Principal Secretary, Government of Uttarakhand, Secretariat, Dehradun to furnish the following documents/information at the earliest:

(i)Present age of the prisoner along with nominal roll.

(ii)Medical report of the prisoner

(iii)Previous crime record, if any, of the prisoner.

205)Pursuant to the same, Shri Rajeev Gupta, Principal Secretary, Government of Uttarakhand furnished all the details to the Joint Secretary (Judicial), Ministry of Home Affairs, Government of India, Jaisalmer House, New Delhi enclosing various medical reports. Learned counsel for the State has also placed mental status of Sundar Singh duly certified by the State Mental Health Institute, Dehradun which is as under:

“MENTAL STATUS EXAMINATION REPORT

Prisoner Name: Mr. Sunder Singh, age about 40 yrs/male, S/o Mr. Har Singh with mark of identification – Black mole over left side lower part of neck, has been assessed by following experts on 16/2/2013 at District Jail, Haridwar. Dr. J.S. Bisht, Psychiatrist Dr. Arun Kumar, Psychiatrist Dr. Pratibha Sharma, Psychiatrist As per information by jail staff and fellow prisoners above mentioned prisoner is not interacting with others, not concerned about personal hygiene and would like to stay alone.

Previous record show that he was referred to Banaras Mental Hospital on 11/12/2010 for Management after being diagnosed as Undifferentiated Schizophrenia by previous psychiatrist.

Current mental status examination shows that he is unkempt and untidy, cooperative but not very much communicative. Speech is decreased in flow and content. At time it was inappropriate and illogical to the question asked. Affect is blunted. Thought flow is decreased and there is poor awareness…

OPINION

On the basis of information and present assessments he is suffering from chronic Psychotic illness and he needs long term treatment.
(Signature of Dr. illegible) (Signature of Dr. illegible)
(Signature of Dr. illegible)
Date 16/2/2013
Dr. J.S. Bisht Dr. Arun Kumar Dr. B. Pratibha
Sharma
Psychiatrist
Thumb Date 16/2/13 Distt. Jail
Haridwar”

MENTAL STATUS EXAMINATION REPORT

Prisoner Name: Mr. Sunder Singh, age about 41 years/male, S/o Mr. Har Singh

Identification Mark: Black mole over left side lower part of neck.

Index prisoner is examined by me at District Jail, Haridwar.

As per information by jail staff, prisoner records and current mental status examination, the sufferings from undifferentiated Schizophrenia which is chronic illness. The patient/prisoner require long term treatment to remain in remission period. Person with mentioned diagnose remain in remission and cannot be said as cured.

Impression: Sunder Singh is suffering from Schizophrenia (Undifferentiated) and required long term treatment.

He is not mentally fit to be awarded for death penalty.

(Signature of Dr. Arun Kumar)
Date 31/10/13
Dr. Arun Kumar
(MBBS, DPM, DNB)
Neuropsychiatries
State Mental Health Institute
Salequi Dehradun

Thumb
Attested LTI of Sunder Singh
(Signature of Dr. Arun Kumar)
Date 31/10/13
Dr. Arun Kumar
(MBBS, DPM, DNB)
Neuropsychiatries
State Mental Health Institute
Salequi Dehradun”

206) Even if we agree that there is no undue delay in disposal of the mercy petition by the President, we are satisfied that Sundar Singh is suffering from mental illness, i.e., Schizophrenia as noted by 3 doctors, viz., Dr. J.S. Bisht, Dr. Arun Kumar, and Dr. Pratibha Sharma, Psychiatrists attached to the State Mental Health Institute, Salequi, Dehradun.

207)In the earlier part of our discussion, we have highlighted various Rules from the U.P. Jail Manual which are applicable to the State of Uttarakhand also, various international conventions to which India is a party and the decisions by the U.N.O. regarding award of death sentence and execution of persons suffering from mental illness. Though all the details were furnished by the persons concerned to Respondent No. 1, Ministry of Home Affairs, unfortunately, those aspects were neither adverted to by the Home Minister nor the summary prepared by the Ministry of Home Affairs for the President makes any reference to the mental condition as certified by the competent doctors.

208)We are satisfied that in view of the mental illness, he cannot be executed. On this ground, the death sentence has to be commuted to life imprisonment. If the condition of Sundar Sigh requires further treatment, we direct the jail authorities to provide all such medical facilities to him.

Writ Petition (Crl.)No. 190 of 2013

209)The death convict Jafar Ali, aged about 48 years, hailing from U.P., has filed the above writ petition. According to him, he is in custody for more than 11 years (single cell confinement).

210)On 14.07.2003, the petitioner was convicted under Section 302 IPC for the murder of his wife and five daughters and was sentenced to death. On 27.01.2004, the Division Bench of the Allahabad High Court confirmed the death sentence passed on the petitioner. On 05.04.2004, the petitioner through legal aid filed SLP (Crl.) No. 1129 of 2004. This Court did not grant special leave and dismissed the SLP in limine.

211)On 19.04.2004, the petitioner sent a mercy petition through jail superintendent to the President of India and the Governor of Uttar Pradesh. On 22.04.2004, Respondent No. 4 sent a radiogram to Respondent No. 2 to enquire about the status of the petitioner’s mercy petition. Thereafter, between 24.04.2004 and 16.05.2005, 14 more such radiograms/letters were sent by Respondent No. 4 to Respondent No. 2 enquiring about the status of the petitioner’s mercy petition. These 15 reminders testify to the unreasonable delay caused by the State Government in deciding the petitioner’s mercy petition.

212)On 20.05.2005, one year after the receipt of the mercy petition, Respondent No. 2 wrote to the District Magistrate and the Government Advocate, Allahabad High Court for the trial court as well as the High Court judgments relating to the petitioner’s case. Here again, there is no explanation for the delay of 11 months.

213)On 30.09.2005, the Government Advocate, Allahabad High Court sent the High Court judgment in the petitioner’s case to Respondent No. 2. Here again, there is no explanation for the delay of four months in sending the judgment.

214)On 28.11.2005, the Governor rejected petitioner’s mercy petition. It took one year and seven months in rejecting the petitioner’s mercy petition in spite of 15 reminders. On 30.12.2005, the Special Secretary, UP Government informed the Home Ministry, Government of India about the rejection of mercy petition by the Governor.

215)On 22.12.2005, information about the rejection of the mercy petition by the Governor was communicated to the prison authorities one month after its rejection. On 18.01.2006, Respondent No. 1 requested Respondent No. 2 to furnish the petitioner’s mercy petition along with the recommendation of the Governor, judgments of the courts and other records of the case.

216)On 17.07.2006, Respondent No. 2 sent the documents to Respondent No. 1 which were requested vide letter dated 18.01.2006 along with a request for an early intimation of the decision on the mercy petition. Here again, there is no explanation for the delay of seven months in sending those documents.

217)As pointed out earlier, Rule V of the Mercy Petition Rules explicitly provides that the mercy petition should be sent along with the judgments and related documents immediately. There is no explanation for this inordinate delay of seven months in sending the papers to Respondent No. 1.

218)On 17.08.2006, Respondent No. 1 advised the President to reject the mercy petition. On 16.01.2007, Respondent No. 2 sent another reminder to Respondent No. 1 regarding the pendency of the petitioner’s mercy petition. Thereafter, further 15 reminders were sent on various dates i.e., on 06.09.2007, 10.07.2008, 19.02.2009, 17.03.2009, 29.05.2009, 27.07.2009, 10.09.2009, 29.09.2009, 10.11.2009, 14.01.2010, 20.04.2010, 26.07.2010, 30.08.2010, 15.07.2011 and 22.11.2011. These 16 reminders testify the unreasonable delay caused in deciding the petitioner’s mercy petition.

219)On 30.09.2011, Respondent No. 1 recalled the files from the President. There is no explanation for this inordinate delay of 5 years and 1 month. On 01.11.2011, Respondent No. 1 advised the President to reject the mercy petition.

220)On 30.10.2012, the President returned the mercy petition to Respondent No. 1 ostensibly on the ground of a petition sent by 14 retired judges to the President. There was no reference of the plea of Jafar Ali in the representation made by 14 retired judges. On 24.01.2013, Respondent No. 1 advised the President to reject the mercy petition. On 14.03.2013, the President rejected the mercy petition, viz., 7 years and 4 months after rejection by the Governor and after 16 reminders sent by the State Government.

221)On 19.03.2013, Respondent No. 1 informed Respondent No. 2 of the rejection of the mercy petition. On 05.04.2013, the petitioner heard the news reports that his mercy petition has been rejected by the President of India.

222)On 06.04.2013, this Court stayed the execution of the petitioner in Writ Petition (Crl.) No. 56 of 2013 filed by PUDR.

223)On 22.06.2013, the prison authorities were informed vide letter dated 18.06.2013 that the President rejected the petitioner’s mercy petition. There is no explanation for this delay of three months in informing the prison authorities and the petitioner about the rejection of the mercy petition.

224)On 08.07.2013, Respondent No. 4 informed the petitioner that his mercy petition had been rejected by the President.

225)The details regarding delay in disposal of mercy petitions by the Governor and the President are as follows:

226)A perusal of the details furnished by the petitioner, counter affidavit filed by the Union of India as well as the State clearly shows that the delay was to the extent of 9 years. Though in the counter affidavit Respondent No. 1 has discussed various aspects including the decision taken by the Home Ministry and the note which was prepared for the approval of the President, the fact remains that there is no explanation at all for taking seven years and five months for disposal of a mercy petition by the President. It is for the executive, viz., the Home Ministry, to explain the reason for keeping the mercy petition for such a long time. To that extent, everyday, after the confirmation of death sentence by this Court is painful for the convict awaiting the date of execution.

227)Accordingly, in view of the unexplained and undue delay of nine years in disposal of mercy petition by the Governor and the President, we hold that the petitioner is entitled to commutation of death sentence to life.

228)Apart from undue and unexplained delay in disposal of mercy petition, another relevant aspect has not been noted by the Ministry while preparing the notes for the President, viz., when the petitioner preferred special leave to appeal against the decision of the High Court confirming the death sentence, this Court did not grant special leave and dismissed the SLP in limine. Though such recourse is permissible inasmuch as since it is a case of death sentence, it is desirable to examine the materials on record first hand in view of time-honoured practice of this Court and to arrive at an independent conclusion on all issues of facts and law, unbound by the findings of the trial court and the High Court. This principle has been highlighted in various decisions including the recent one in Mohd. Ajmal Kasab vs. State of Maharashtra (2012) 9 SCC 1.

229)In addition, we also perused the notes prepared by the Ministry of Home Affairs, the decision taken by the Home Ministry and the notes placed for the approval of the President. It is not in dispute that the summary prepared by the Ministry of Home Affairs for the President failed to consider the undue delay and there is no explanation for the same at all.

230)We are satisfied that all these grounds enable this court to commute death sentence into life.

Writ Petition (Crl.) Nos. 191 and 136 of 2013

231)Writ Petition (Crl.) No. 191 of 2013 has been filed by Maganlal Barela, death convict, aged about 40 years, hailing from the State of M.P. and on his behalf, PUDR has filed Writ Petition (Crl.) No. 136 of 2013 for similar relief.

232)The petitioner claims that he is in custody for more than three years (single cell confinement). On 03.02.2011, the petitioner, who is a tribal, was convicted by the Sessions Court under Section 302 IPC for the murder of his five daughters and under Section 309 IPC and was imposed a sentence of death. On 12.09.2011, the Division Bench of the Madhya Pradesh High Court confirmed the death sentence passed on the petitioner who was represented on legal aid. On 09.01.2012, the petitioner, through legal aid, filed SLP (Crl.) Nos. 329-330 of 2012. This Court did not grant special leave and dismissed the SLP in limine.

233)On 02.02.2012, the petitioner sent a mercy petition through jail addressed to the President of India and the Governor of Madhya Pradesh. The mercy petition, which was verified by the prison authorities, stated inter alia that the petitioner was suffering from mental illness and was continuously undergoing treatment through Central Jail, Bhopal.

234)On 20.02.2012, the Prison Superintendent, in accordance with Rule 377 of the Madhya Pradesh Prison Manual, submitted a form to the State Government. In column 18, it was stated that his conduct in prison was good. Against column 19, which was for the Prison Superintendent to opine on alteration of the petitioner’s sentence, the Superintendent opined as follows:

“Commutation of sentence is recommended”.

235)On 20.02.2012, the Prison Superintendent, in accordance with the Government Law and Judiciary Department Circular No. 4837/21 dated 13.12.1982 submitted to the State Government a form entitled “Required Information”. The entries made by the Superintendent in the said form stated inter alia that the petitioner is not a habitual criminal, he belongs to the weaker section of the society and he is of mental disorder and at present under treatment of Psychiatry Department Hamidia Hospital, Bhopal. Against Column No. 11 which seeks the Superintendent’s recommendations, it was stated that, “Commutation of Sentence is recommended”.

236)On 07.08.2012, Respondent No. 1 received the petitioner’s mercy petition forwarded by Respondent No. 2.There was a delay of six months in forwarding the mercy petition to Respondent No. 1 and no explanation was given by Respondent No. 2 in the counter affidavit.

237)On 31.08.2012, Respondent No. 1 wrote to Respondent No. 2 requesting the petitioner’s medical report since in the mercy petition, it was stated that the petitioner is suffering from mental illness. Respondent No. 1 also requested Respondent No. 2 to confirm whether the petitioner had filed a review petition in this Court against the dismissal of his SLP.

238)On 19.10.2012, Respondent No. 1 sent a reminder to Respondent No. 2 about the queries vide letter dated 31.08.2012. On 29.11.2012, Respondent No. 1 sent the second reminder to Respondent No. 2 about the queries. On 26.02.2013, Respondent No. 1 sent a third reminder to Respondent No. 2 about the same.

239)On 25.03.2013, the Jail Superintendent, Central Jail, Indore forwarded the medical report to Respondent No. 1 and it was also informed that the petitioner has not filed a review petition in this Court against the dismissal of his SLP.

240)On 06.06.2013, the Home Minister advised the President to reject the mercy petition. On 16.07.2013, the President rejected the petitioner’s mercy petition. There was no reference to the petitioner’s mental health report in the note prepared for approval of the President. Likewise, there was no reference to the fact that this Court had rejected the petitioner’s SLP in limine in a death case.

241)On 27.07.2013, the petitioner was orally informed by the prison authorities that his mercy petition has been rejected by the President of India. The petitioner was neither furnished with any official written communication regarding the rejection of his mercy petition by the President of India nor the petitioner was informed that his mercy petition has been rejected by the Governor.

242)On 27.07.2013, the Superintendent of the Central Prison, Jabalpur sent a letter to the Icchawar Police Station asking them to inform the petitioner’s family to meet the petitioner urgently.

243)On 07.08.2013, this Court stayed the execution of the petitioner in Writ Petition (Crl.) No. 136 of 2013 filed by PUDR. The details regarding delay in disposal of mercy petition are as follows:

Insofar as the delay is concerned, it cannot be claimed that the same is excessive though there is a delay of one year in disposal of mercy petition by the President. However, during the period of trial before the Sessions court and even after conviction, the petitioner was suffering from mental illness. This is clear from the note made by the Prison Superintendent who opined for alteration of petitioner’s sentence from death to life. This important aspect was not noted by the Home Ministry.

244)Another relevant event which was not noticed by the Home Ministry while considering the notes for approval of the President was that the petitioner filed SLP through legal aid and this Court did not grant special leave and dismissed the SLP in limine. As highlighted in the previous case, we reiterate that in case of death sentence, it is desirable to examine all the materials on record first hand in accordance with the time-bound practice of this Court and arrive at an independent conclusion on all the issues of fact and law irrespective of the findings of the trial court and the High Court. Such recourse was not adopted in this case. This was not highlighted in the notes prepared for the approval of the President. As stated earlier, the summary prepared by the Ministry of Home Affairs for the President fails to consider the mental illness as well as the opinion offered by the Prison Superintendent in terms of the M.P. Prison Manual as a ground for commutation of sentence. For all these reasons, more particularly, with regard to his mental illness, we feel that ends of justice would be met by commuting the sentence of death into life imprisonment.

Writ Petition (Crl.) Nos. 139 and 141 of 2013

245)Shivu – death convict, aged about 31 years, hailing from Karnataka, has filed Writ Petition (Crl.) No. 139 of 2013. Jadeswamy, aged about 25 years, also hailing from Karnataka, has filed Writ Petition (Crl.) No. 141 of 2013. Both are challenging the rejection of their mercy petitions on various grounds. According to them, they are in custody for 11 years and 10 months.

246)Both the petitioners were convicted for an offence under Sections 302, 376 read with Section 34 IPC and were sentenced to death. On 07.11.2005, the Karnataka High Court confirmed the petitioners’ death sentence. On 13.02.2007, this Court dismissed their appeal and upheld the death sentence awarded to them.

247)On 27.02.2007, both the petitioners filed separate mercy petitions addressed to the Governor of Karnataka and the President of India through the Prison Superintendent.

248)On 21.03.2007, Respondent No. 1 wrote to Respondent No. 2 requesting to consider petitioners’ mercy petitions under Article 161 of the Constitution and, in the event of rejection, to send the mercy petition along with the recommendations, copies of the judgments, copies of the records of the case, etc. to Respondent No. 1 for consideration under Article 72 of the Constitution.

249)On 05.04.2007 and 09.05.2007, review petitions filed by the petitioners were dismissed.

250)On 10.08.2007, Respondent No. 2 informed Respondent No. 1 that the Governor has rejected the mercy petitions and forwarded the copy of the trial court judgment, the Supreme Court judgment and mercy petitions.

251)On 09.10.2007, Respondent No. 1 wrote to Respondent No. 2 requesting him to provide the judgment of the High Court, the police diary, the court proceedings and the English translation of the trial court judgment. Respondent No. 2 sent some of these documents on 26.07.2012, i.e., after 4 years and 9 ½ months and the rest of the documents were sent on 03.12.2012, i.e., after 5 years and 2 months. There was also no explanation as to why Respondent No. 1 did not take steps to expedite the matter for such a long period.

252)On 03.04.2013, Respondent No. 1 advised the President to reject the mercy petitions. There was a delay of 5 years and 8 months after the Governor rejected the mercy petitions.

253)On 27.05.2013, the President returned the file along with the mercy petitions sent by Shivu’s mother and the members of the Badrayyanhalli Gram Panchayat.

254)On 24.06.2013, Respondent No. 1 advised the President to reject the mercy petitions. On 27.07.2013, the President rejected the petitioners’ mercy petitions.

255)On 13.08.2013, the petitioners were informed by the prison authorities that their mercy petitions have been rejected by the President. On 16.08.2013, the local police visited the petitioners’ family members and informed that they would be executed at 6 a.m. on 22.08.2013 at Belgaum Central Prison. The said procedure was contrary to the Prison Manual. As per the present Rules, the execution can only be scheduled after 14 days of informing the prisoner of rejection of mercy petition and in this case the same was not being followed. The following are the details regarding delay in disposal of mercy petitions by the Governor and the President:

256)It is true that there is some explanation in the affidavit filed on behalf of the State in respect of the time taken by the Governor for rejection of their mercy petitions, however, there is no acceptable/adequate reason for delay of six years at the hands of the Ministry of Home Affairs followed by the rejection order by the President.

257)Though learned counsel has referred to the fact that the trial court and the High Court followed certain decisions which were later held as per incuriam, in view of the fact that there is undue delay of six years which is one of the circumstances for commutation of sentence from death to life, we are not adverting to all other aspects.

258)We also perused the records of the Ministry of Home Affairs produced by learned ASG and the summary prepared for approval of the President. There is no specific explanation in the summary prepared by the Ministry of Home Affairs for the President for the delay of six years. In view of the same and in the light of the principles enunciated in various decisions which we have adverted to in the earlier part of our judgment, we hold that the petitioners have made out a case for commutation of sentence.

Guidelines:

259)In W.P (Crl) No 56 of 2013, Peoples’ Union for Democratic Rights have pleaded for guidelines for effective governing of the procedure of filing mercy petitions and for the cause of the death convicts. It is well settled law that executive action and the legal procedure adopted to deprive a person of his life or liberty must be fair, just and reasonable and the protection of Article 21 of the Constitution of India inheres in every person, even death-row prisoners, till the very last breath of their lives. We have already seen the provisions of various State Prison Manuals and the actual procedure to be followed in dealing with mercy petitions and execution of convicts. In view of the disparities in implementing the already existing laws, we intend to frame the following guidelines for safeguarding the interest of the death row convicts.

1.Solitary Confinement: This Court, in Sunil Batra (supra), held that solitary or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional. Almost all the prison Manuals of the States provide necessary rules governing the confinement of death convicts. The rules should not be interpreted to run counter to the above ruling and violate Article 21 of the Constitution.

2.Legal Aid: There is no provision in any of the Prison Manuals for providing legal aid, for preparing appeals or mercy petitions or for accessing judicial remedies after the mercy petition has been rejected. Various judgments of this Court have held that legal aid is a fundamental right under Article 21. Since this Court has also held that Article 21 rights inhere in a convict till his last breath, even after rejection of the mercy petition by the President, the convict can approach a writ court for commutation of the death sentence on the ground of supervening events, if available, and challenge the rejection of the mercy petition and legal aid should be provided to the convict at all stages. Accordingly, Superintendent of Jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from intimating the convicts.

3.Procedure in placing the mercy petition before the President: The Government of India has framed certain guidelines for disposal of mercy petitions filed by the death convicts after disposal of their appeal by the Supreme Court. As and when any such petition is received or communicated by the State Government after the rejection by the Governor, necessary materials such as police records, judgment of the trial court, the High Court and the Supreme Court and all other connected documents should be called at once fixing a time limit for the authorities for forwarding the same to the Ministry of Home Affairs. Even here, though there are instructions, we have come across that in certain cases the Department calls for those records in piece-meal or one by one and in the same way, the forwarding Departments are also not adhering to the procedure/instructions by sending all the required materials at one stroke. This should be strictly followed to minimize the delay. After getting all the details, it is for the Ministry of Home Affairs to send the recommendation/their views to the President within a reasonable and rational time. Even after sending the necessary particulars, if there is no response from the office of the President, it is the responsibility of the Ministry of Home Affairs to send periodical reminders and to provide required materials for early decision.

4.Communication of Rejection of Mercy Petition by the Governor: No prison manual has any provision for informing the prisoner or his family of the rejection of the mercy petition by the Governor. Since the convict has a constitutional right under Article 161 to make a mercy petition to the Governor, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the Governor should forthwith be communicated to the convict and his family in writing or through some other mode of communication available.

5.Communication of Rejection of the Mercy Petition by the President: Many, but not all, prison manuals have provision for informing the convict and his family members of the rejection of mercy petition by the President. All States should inform the prisoner and their family members of the rejection of the mercy petition by the President. Furthermore, even where prison manuals provide for informing the prisoner of the rejection of the mercy petition, we have seen that this information is always communicated orally, and never in writing. Since the convict has a constitutional right under Article 72 to make a mercy petition to the President, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the President should forthwith be communicated to the convict and his family in writing.

6.Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor.

7.Minimum 14 days notice for execution: Some prison manuals do not provide for any minimum period between the rejection of the mercy petition being communicated to the prisoner and his family and the scheduled date of execution. Some prison manuals have a minimum period of 1 day, others have a minimum period of 14 days. It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution for the following reasons:-

(a)It allows the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs.

(b)It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families.

It is the obligation of the Superintendent of Jail to see that the family members of the convict receive the message of communication of rejection of mercy petition in time.

8.Mental Health Evaluation: We have seen that in some cases, death-row prisoners lost their mental balance on account of prolonged anxiety and suffering experienced on death row. There should, therefore, be regular mental health evaluation of all death row convicts and appropriate medical care should be given to those in need.

9.Physical and Mental Health Reports: All prison manuals give the Prison Superintendent the discretion to stop an execution on account of the convict’s physical or mental ill health. It is, therefore, necessary that after the mercy petition is rejected and the execution warrant is issued, the Prison Superintendent should satisfy himself on the basis of medical reports by Government doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed. If the Superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the execution, and produce the prisoner before a Medical Board for a comprehensive evaluation and shall forward the report of the same to the State Government for further action.

10.Furnishing documents to the convict: Most of the death row prisoners are extremely poor and do not have copies of their court papers, judgments, etc.

These documents are must for preparation of appeals, mercy petitions and accessing post-mercy judicial remedies which are available to the prisoner under Article 21 of the Constitution. Since the availability of these documents is a necessary pre- requisite to the accessing of these rights, it is necessary that copies of relevant documents should be furnished to the prisoner within a week by the prison authorities to assist in making mercy petition and petitioning the courts.

11.Final Meeting between Prisoner and his Family: While some prison manuals provide for a final meeting between a condemned prisoner and his family immediately prior to execution, many manuals do not. Such a procedure is intrinsic to humanity and justice, and should be followed by all prison authorities. It is therefore, necessary for prison authorities to facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution.

12.Post Mortem Reports: Although, none of the Jail Manuals provide for compulsory post mortem to be conducted on death convicts after the execution, we think in the light of the repeated arguments by the petitioners herein asserting that there is dearth of experienced hangman in the country, the same must be made obligatory.

In Deena alias Deen Dayal and Ors. vs. Union of India (1983) 4 SCC 645, the petitioners therein challenged the constitutional validity of Section 354(5) on the ground that hanging a convict by rope is a cruel and barbarous method of executing death sentence, which is violative of Article 21 of the Constitution. This court held as follows:-

“7. …After making this observation Bhagwati, J., proceeds thus :

The physical pain and suffering which the execution of the sentence of death involves is also no less cruel and inhuman. In India, the method of execution followed is hanging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the Royal Commission on Capital Punishment 1949-53 found that hanging is the most humane method of execution and so also in Ichikawa v. Japan, the Japanese Supreme Court held that execution by hanging does not correspond to cruel punishment inhibited by Article 36 of the Japanese Constitution. But whether amongst all the methods of execution, hanging is the most humane or in view of the Japanese Supreme Court, hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly unaccompanied by intense physical torture and pain.” (emphasis supplied).

81.Having given our most anxious consideration to the central point of inquiry, we have come to the conclusion that, on the basis of the material to which we have referred extensively, the State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by Section 354(5) of the CrPC does not violate the guarantee right contained in Article 21 of the Constitution. The material before us shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner’s apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. The system of hanging, as now used, avoids to the full extent “the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop. The system is consistent,with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation of brutality of any kind.”

It is obvious from a reading of the aforesaid decision that the method of hanging prescribed by Section 354(5) of the Code was held not violative of the guaranteed right under Article 21 of the Constitution on the basis of scientific evidence and opinions of eminent medical persons which assured that hanging is the least painful way of ending the life. However, it is the contention of learned counsel for the respondents that owing to dearth of experienced hangman, the accused are being hanged in violation of the due procedure.

260)By making the performance of post mortem obligatory, the cause of the death of the convict can be found out, which will reveal whether the person died as a result of the dislocation of the cervical vertebrate or by strangulation which results on account of too long a drop. Our Constitution permits the execution of death sentence only through procedure established by law and this procedure must be just, fair and reasonable. In our considered view, making post mortem obligatory will ensure just, fair and reasonable procedure of execution of death sentence.

Conclusion:

261)In the aforesaid batch of cases, we are called upon to decide on an evolving jurisprudence, which India has to its credit for being at the forefront of the global legal arena. Mercy jurisprudence is a part of evolving standard of decency, which is the hallmark of the society.

262)Certainly, a series of Constitution Benches of this Court have upheld the Constitutional validity of the death sentence in India over the span of decades but these judgments in no way take away the duty to follow the due procedure established by law in the execution of sentence. Like the death sentence is passed lawfully, the execution of the sentence must also be in consonance with the Constitutional mandate and not in violation of the constitutional principles.

263)It is well established that exercising of power under Article 72/161 by the President or the Governor is a constitutional obligation and not a mere prerogative. Considering the high status of office, the Constitutional framers did not stipulate any outer time limit for disposing the mercy petitions under the said Articles, which means it should be decided within reasonable time. However, when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect. Right to seek for mercy under Article 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Every Constitutional duty must be fulfilled with due care and diligence; otherwise judicial interference is the command of the Constitution for upholding its values.

264)Remember, retribution has no Constitutional value in our largest democratic country. In India, even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same. Therefore, we make it clear that when the judiciary interferes in such matters, it does not really interfere with the power exercised under Article 72/161 but only to uphold the de facto protection provided by the Constitution to every convict including death convicts.

265)In the light of the above discussion and observations, we dispose of the writ petitions. In the cases of Suresh, Ramji, Bilavendran, Simon, Gnanprakasam, Madiah, Praveen Kumar, Gurmeet Singh, Sonia, Sanjeev, Sundar Singh, Jafar Ali, Magan Lal Berala, Shivu and Jadeswamy, we commute the death sentence into imprisonment for life. All the writ petitions are, accordingly, allowed on the above terms.

……….…………………………CJI.
(P. SATHASIVAM)
……….……………………………J.
(RANJAN GOGOI)
..….….……………………………J.
(SHIVA KIRTI SINGH)

NEW DELHI;
JANUARY 21, 2014.

The post Shatrughan Chauhan & Anr. Vs UOI & Ors. appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
CURATIVE PETITION (CRIMINAL) NO. 88 OF 2013
IN
REVIEW PETITION (CRIMINAL) NO. 435 OF 2013
IN
WRIT PETITION (CRIMINAL) NO. 146 OF 2011
Navneet Kaur … Petitioner(s)
versus
State of NCT of Delhi & Anr. … Respondent(s)
J U D G M E N T

P.Sathasivam, CJI.
1) Navneet Kaur w/o Devender Pal Singh Bhullar, filed the present Curative Petition against the dismissal of Review Petition (Criminal) No.435 of 2013 in Writ Petition (Criminal) No. 146 of 2011 on 13.08.2013, wherein she prayed for setting aside the death sentence imposed upon Devender Pal Singh Bhullar by commuting the same to imprisonment for life on the ground of supervening circumstance of delay of 8 years in disposal of mercy petition.

2) Considering the limited issue involved, there is no need to traverse all the factual details. The brief background of the case is: By judgment dated 25.08.2001, Devender Pal Singh Bhullar was sentenced to death by the Designated Judge, Delhi. Thereafter, he preferred an appeal being Criminal Appeal No. 993 of 2001 before this Court and by judgment dated 22.03.2002, this Court confirmed the death sentence and dismissed his appeal. Against the dismissal of the appeal by this Court, the accused preferred Review Petition (Criminal) No. 497 of 2002, which was also dismissed by this Court on 17.12.2002.

3) Soon after the dismissal of the review petition, the accused submitted a mercy petition dated 14.01.2003 to the President of India under Article 72 of the Constitution and prayed for commutation of his sentence. During the pendency of the petition filed under Article 72, he also filed Curative Petition (Criminal) No. 5 of 2003 which was also dismissed by this Court on 12.03.2003.

4) On 30.05.2011, a communication was sent from the Joint Secretary (Judicial) to the Principal Secretary, Home Department, Government of NCT of Delhi, stating that the President of India has rejected the mercy petition submitted on behalf of Devender Pal Singh Bhullar. The same was also communicated to the Superintendent, Central Jail No. 3, Tihar Jail, New Delhi on 13.06.2011.

5) On 24.06.2011, the wife of the accused (petitioner herein) preferred a Writ Petition (Criminal) No. 146 of 2011 before this Court praying for quashing the communication dated 13.06.2011. By order dated 12.04.2013, this Court, after examining and analyzing the materials brought on record by the respondents, arrived at the conclusion that there was an unreasonable delay of 8 years in disposal of mercy petition, which is one of the grounds for commutation of death sentence to life imprisonment as per the established judicial precedents. However, this Court dismissed the writ petition on the ground that when the accused is convicted under TADA, there is no question of showing any sympathy or considering supervening circumstances for commutation of death sentence.

6) Aggrieved by the said dismissal, the wife of the accused preferred Review Petition being (Criminal) No. 435 of 2013 which was also dismissed by this Court on 13.08.2013. Subsequently, the wife of the accused, petitioner herein has filed the above Curative Petition for consideration by this Court.

7) Heard Mr. KTS Tulsi, learned senior counsel appearing on behalf of the petitioner and Mr. G.E. Vahanvati, learned Attorney General for India appearing on behalf of the respondents.

8) Very recently, a three-Judge Bench of this Court, in Writ Petition (Criminal) No. 55 of 2013 Etc., titled Shatrughan Chauhan & Anr. vs. Union of India & Ors., 2014 (1) SCALE 437, by order dated 21.01.2014, commuted the sentence of death imposed on the petitioners therein to imprisonment for life which has a crucial bearing for deciding the petition at hand. In the aforesaid verdict, this Court validated the established principle and held that unexplained/unreasonable/inordinate delay in disposal of mercy petition is one of the supervening circumstances for commutation of death sentence to life imprisonment.

9) While deciding the aforesaid issue in the above decision, the Bench was simultaneously called upon to decide a specific issue viz., whether is there a rationality in distinguishing between an offence under Indian Penal Code, 1860 and Terrorist and Disruptive Activities (Prevention) Act for considering the supervening circumstance for commutation of death sentence to life imprisonment, which was the point of law decided in Writ Petition (Criminal) No. 146 of 2011.

10) The larger Bench in Shatrughan Chauhan (supra), after taking note of various aspects including the constitutional right under Article 21 as well as the decision rendered by the Constitution Bench in Triveniben vs. State of Gujarat (1988) 4 SCC 574, held:

“57) 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 vs. State of Punjab (1980) 2 SCC 684 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.

58) As rightly pointed out by Mr. Ram Jethmalani, 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 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.”

*** *** ***
“64) In the light of the same, we are of the view that the ratio laid down in Devender Pal Singh Bhullar (supra) is per incuriam. There is no dispute that in the same decision this Court has accepted the ratio enunciated in Triveniben (supra) (Constitution Bench) and also noted some other judgments following the ratio laid down in those cases that unexplained long delay may be one of the grounds for commutation of sentence of death into life imprisonment. There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence. Each case requires consideration on its own facts.”

*** *** ***
“70) Taking guidance from the above principles and in the light of the ratio enunciated in Triveniben (Supra), 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 (supra).”

11) Learned Attorney General, taking note of the conclusion arrived at in Shatrughan Chauhan (supra) wherein this Court held that the ratio laid down in Devender Pal Singh Bhullar vs. State (NCT) of Delhi (2013) 6 SCC 195 is per incuriam, fairly admitted that applying the said principle as enunciated in Shatrughan Chauhan (supra), death sentence awarded to Devender Pal Singh Bhullar is liable to be commuted to life imprisonment. We appreciate the rationale stand taken by learned Attorney General and accept the same.

12) In addition, it is also brought to our notice by letter dated 08.02.2014, which was received by the Registry on 12.02.2014 from the Institute of Human Behaviour and Allied Sciences, that the accused Devender Pal Singh Bhullar was examined by the Standing Medical Board on 05.02.2014 and the Board opined as under:

“1.The patient has been diagnosed with Severe Depression with Psychotic features (Treatment Refractory Depression) with Hypertension with Dyslipidemia with Lumbo-cervical Spondylosis with Mild Prostatomegaly.

2. He is currently receiving Anti-Depressant, AntiPsychotic, Anti-anxiety, Anti-Hypertensives, Hypolipedemic, Anit-Convulsant (for Neuropathic pain) and Antacid drugs in adequate doses along with supportive psychotherapy and physiotherapy.

3. Patient has shown partial and inconsistent response to the treatment with significant fluctuations in the severity of his clinical condition.

4.The treatment comprising of various combinations of pharmacological and non-pharmacological treatments have brought about partial and inconsistent improvement in his clinical condition in the last three years of hospitalization. The scope for effective treatment options is limited and thereby the chances of his recovery remain doubtful in the future course of his illness”.

The above report has been signed by the Director & Chairman as well as four Members of the Medical Board. The report clearly shows that he is suffering from acute mental illness.

13) The three-Judge Bench in Shatrughan Chauhan (supra) held that insanity/mental illness/schizophrenia is also one of the supervening circumstances for commutation of death sentence to life imprisonment. By applying the principle enunciated in Shatrughan Chauhan (supra), the accused cannot be executed with the said health condition.

14) In the light of the above discussion and also in view of the ratio laid down in Shatrughan Chauhan (supra), we deem it fit to commute the death sentence imposed on Devender Pal Singh Bhullar into life imprisonment both on the ground of unexplained/inordinate delay of 8 years in disposal of mercy petition and on the ground of insanity. To this extent, the Curative Petition stands allowed.

…………………………………………………CJI.
(P. SATHASIVAM)
……………………………………………………J.
(R. M. LODHA)
……………………………………………………J.
(H.L. DATTU)
……………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI;
MARCH 31, 2014.

The post Navneet Kaur vs State of NCT of Delhi & Anr. appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 192 OF 2014
(Arising out of SLP (C) No. 2008 of 2010)

Major General H.M. Singh, VSM … Appellant
Versus
Union of India and Anr. … Respondents

J U D G M E N T

Jagdish Singh Khehar, J.

1. The appellant was commissioned as Second Lieutenant in the Indian Army on 15.6.1969. His initial induction was into the Armoured Corps. On 25.5.1983 the appellant changed his cadre. He permanently moved into the Defence Research and Development Organisation (hereinafter referred to as ‘the DRDO’). Having gone through decades of rigorous military service and having consistently earned onward promotions to higher ranks, as were due to him from time to time, he was granted acting rank of Major General on 1.6.2004, after he had been approved for promotion to the rank of Major General by a duly constituted Selection Board.

2. On 31.3.2005 Lieutenant General Ravinder Nath retired from service. Resultantly a vacancy in the rank of Lieutenant General became available. On 1.1.2006 the appellant claims to have become eligible for the consideration for promotion to the above vacancy. It would be relevant to mention, that at that juncture, in the cadre of Major Generals, the appellant was the senior most serving officer (as per seniority list dated 29.12.2006) eligible for promotion to the rank of Lieutenant General. In the Government of India gazette (published on 6.12.2007) the appellant was shown as having been promoted as substantive Major General with effect from 7.1.2004. It would also be relevant to mention, that the name of the appellant was included in the name announced by the President of India for the award of the Vishist Seva Medal on 26.1.2007. The said award was sought to be bestowed upon the appellant, for his having rendered distinguished service of an exceptional order to the nation. It is therefore, that the appellant was desirous, that his claim be considered for onward promotion to the rank of Lieutenant General. At that juncture, the appellant had not only held the rank of Major General for more 18 months, he had also earned two confidential reports in the said rank. The record appended to the pleadings indicates, that he had also been granted vigilance clearance. Despite the above, the appellant was not considered eligible for promotion to the rank of Lieutenant General as he had not completed two years’ service in the rank of Major General at that time.

3. Under the circumstances mentioned in the foregoing paragraph, AVM R. Yadav, an officer from the Indian Air Force was inducted into the DRDO on 29.12.2005, against the vacancy in the rank of Lieutenant General created by Lieutenant General Ravinder Nath. AVM R. Yadav retired from service with effect from 31.12.2006. As such, a vacancy in the rank of Lieutenant General became available with effect from 1.1.2007.

4. On 30.4.2007, the appellant addressed a representation to the Director General DRDO asserting, that he was eligible for promotion against the existing vacancy of Lieutenant General, as he fulfilled the laid down criteria. He expressly pointed out in his above representation, that in the event of his promotion to the rank of Lieutenant General his age of retirement would stand extended. As Major General he would retire at the age of 59 years, on 29.2.2008 (as the appellant date of birth is 2.2.1949). On his promotion to the rank of Lieutenant General his age of retirement would stand extended to 28.2.2009 i.e., to 60 years. The appellant therefore requested the authorities, to immediately constitute and convene a meeting of the Selection Board, for considering his claim for onward promotion to the rank of Lieutenant General. For the above purpose, the appellant also met various higher authorities. On all such occasions he was informed, that the action to convene a meeting of the Selection Board was under process. In fact, in November, 2007 the appellant was assured, that the meeting of Selection Board would be held in December, 2007. He was also assured, that in the event of his being considered suitable for promotion by the Selection Board, he will actually be promoted to the rank of Lieutenant General, before the date of his retirement (29.2.2008) as Major General.

5. Since the date of appellant’s retirement – 29.2.2008 was fastapproaching, and because it seemed to the appellant that nothing was moving, the appellant submitted his grievance to the authorities in writing, praying for immediate action in the matter. In this behalf he also sought personal hearing, to present his case. These pleas were raised by the appellant through separate communications dated 26.12.2007 (to the SA to the Defence Minister, and to the DRDO). On 28.2.2008 he addressed a letter for the same purpose, to the Personal Secretary to the Defence Minister.

6. Two days prior to the appellant’s retirement on superannuation (29.2.2008, as Major General), on 27.2.2008 a meeting of the Selection Board for promotion to the rank of Lieutenant General was convened. The Selection Board cleared the appellant for promotion to the rank of Lieutenant General. The Selection Board cleared only the name of the appellant for the above promotion, from out of a panel of 4 names.

7. In order to ensure that the appellant’s claim for promotion to the rank of Lieutenant General is not frustrated, the President of India by an order dated 29.2.2008, was pleased to grant the appellant extension of service, for a period of three months. A relevant extract of the above order is being reproduced hereinunder:
“I am directed to convey the sanction of the President to the grant of extension in service to IC-23289 Maj Gen H.M. Singh, VSM, AC, CVRDE, Avadi a permanently seconded officer of Defence Research & Development Organisation, for a period of three months with effect from 01 Mar 2008 or till the approval of ACC, whichever is earlier.
This issues with the concurrence of MOD/Fin(R&D) vide their Dy No. 582/Fin (R&D) dated 29 Feb 2008.”
(emphasis is ours)

A perusal of the above communication reveals, that the aforesaid extension of service was granted to the appellant, to await the approval of the Appointments Committee of the Cabinet. In this behalf it would be relevant to mention, that in the process of consideration for promotion to the rank of Lieutenant General, the recommendation made by the Selection Board requires the approval of the Appointments Committee of the Cabinet, before it is given effect to. It is apparent that the Appointments Committee of the Cabinet, could not finalise the matter during the appellant’s extended tenure of three months. As such, for the same reasons, the President of India was pleased to grant the appellant a further extension in service (as Major General) for a period of one month i.e., up to 30.6.2008 or till the approval of the Appointments Committee of the Cabinet, whichever was earlier.

8. On 2.6.2008, the Secretariat of the Appointments Committee of the Cabinet (Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training) issued a communication with the following observations:
“2. The Appointments Committee of the Cabinet has not approved the promotion of IC-23289 Maj Gen H.M. Singh, a permanently seconded officer of DRDO, to the rank of Lieutenant General.”

In consonance with the order granting extension in service, the DRDO issued an order dated 3.6.2008, retiring the appellant from the rank of Major General with immediate effect. The appellant assailed the above order dated 2.6.2008 (denying the appellant promotion to the rank of Lieutenant General), and the order dated 3.6.2008 (by which the appellant was retired from service) by filing Writ Petition No. 15508 of 2008 before the High Court of Judicature at Madras (hereinafter referred to as ‘the High Court’). Convening a meeting of the Selection Board on 27.2.2008 i.e., just two days before the appellant was to retire on attaining the age of superannuation, as also, the consideration of the recommendation made by the Selection Board at the hands of the Appointments Committee of the Cabinet, more than three months after the date on which the appellant would retire from service, were vigorously referred to, to demonstrate the apathy at the hands of the authorities, which according to the appellant, had resulted in denial of promotion to him.

9. In response to the alleged delay in the matter of considering the appellant’s claim for promotion, it was pointed out that the DRDO had a large number of high value projects viz. design, development and production of Light Combat Aircraft, design and development of Kaveri Engine, design and development of Airborne Early Warning System and a number of projects related to upgradation of avionics and electronics warfare system, Sukhoi, MIG-27 and LCA; accordingly a decision was taken by the DRDO i.e., the appellant’s controlling authority, to earmark the vacancy of Lieutenant General (against which the appellant was claiming consideration), for an officer of equivalent rank from the Indian Air Force, who would be in a position to oversee, provide guidance and coordinate all the abovementioned highly sensitive and intricate projects. The above tentative determination for filling up the vacancy of Lieutenant General from the Indian Air Force was, however, subsequently reviewed in consultation with the Government of India. The Government of India on 14.2.2008 finally decided to fill up the vacancy of Lieutenant General by promotion of a permanently seconded service officer of the DRDO. It was therefore asserted, that non-holding of the meeting of the Selection Board, and the non-finalisation of the consideration of the appellant’s claim for promotion to the rank of Lieutenant General, could not be described as a deliberate and intentional attempt by the authorities to deprive the appellant of his promotional opportunity.

10. In its pleadings the Union of India adopt a clear stand, that the appellant having attained the age of superannuation on 29.2.2008, could not be promoted as Lieutenant General “while he was on extension”. It was also the contention of the Union of India, that since the Appointments Committee of the Cabinet had not approved the appellant’s promotion to the rank of Lieutenant General, the same could not be challenged specially because the Appointments Committee of the Cabinet had given valid reasons to defer the recommendation of the Selection Board / Departmental Promotion Committee. The Union of India acknowledged, that the Appointments Committee of the Cabinet was the competent authority to approve the recommendation for promotion to the rank of Lieutenant General (made by the Selection Board). It was admitted, that the Selection Board in its meeting held on 27.2.2008 had recommended the appellant for promotion to the rank of Lieutenant General. Pending approval of the Appointments Committee of the Cabinet, the appellant had crossed the age of his retirement on superannuation (in the rank of Major General, on 29.2.2008). Thereafter, the appellant was granted extension in service beyond the period of his retirement up to 30.6.2008.

11. Having considered the contentions and prayers made by the appellant, a Single Bench of the High Court while disposing of the Writ Petition No. 15508 of 2008, recorded the following observations:
“40. When the petitioner’s extension of service was not on the ground of exigency, DRDO being mainly civilian, Rules do not permit promotion on extension. ACC’s action in not granting approval to the recommendation made by Selection Board is in accordance with the Rules and the same cannot be assailed. Petitioner cannot contend that he has been discriminated in not granting promotion while on extension.
41. There is no substance in the contention that the Petitioner having been extended his service, he ought to have been granted promotion. Extension of service does not give rise the legitimate expectation for promotion. The extensions in tenure were given to the petitioner to ensure that procedure relating to approval of competent authority on the recommendation of Selection Board was completed in an objective manner by following prescribed process. On culmination of process, ACC is the competent authority came to the decision not to promote the petitioner. As such there is not incoherence and arbitrariness in the decision warranting exercise of judicial review.”
In the light of the above observations Writ Petition No. 15508 of 2008 was dismissed on 5.5.2009.

12. Dissatisfied with the dismissal of Writ Petition No. 15508 of 2008, the appellant filed an intra court Writ Appeal No. 779 of 2009. In the process of adjudicating upon the controversy raised in the abovementioned Writ Appeal, a Division Bench of the High Court framed two questions for its consideration. Firstly, whether the appellant Major General H.M. Singh had any fundamental right for promotion solely on the basis of the recommendation of the Selection Board. And secondly, whether Appointments Committee of the Cabinet was liable to accept the recommendation made by the Selection Board in favour of the appellant, and consequently, order the appellant’s promotion to the rank of Lieutenant General. Relying on paragraph 108 of the Regulation of Army which delineates the constitution and duties of the Selection Board, the Division Bench concluded that the recommendations of the Selection Board were merely recommendatory in nature, and therefore, answered the first question in the negative. The Division Bench further held, that a legitimate claim for the promotion would arise, only if a recommendation made by the Selection Board gets the approval of the Appointments Committee of the Cabinet. Relying on the judgments rendered by this Court in Dr. H. Mukherjee Vs. Union of India and others, 1994 Supp. (1) SCC 250, Union of India and others Vs. N.P. Dhamania and others, 1995 Supp. (1) SCC 1, and Food Corporation of India and others Vs. Parashotam Das Bansal and others, (2008) 5 SCC 100, the Division Bench of the High Court further concluded, that the Appointments Committee of the Cabinet was not bound by the recommendation of the Selection Board. It accordingly held, that for justifiable reasons, the Appointments Committee of the Cabinet had the right to either accept, or to refuse the recommendation of the Selection Board. In sum and substance it came to be concluded, that unless it was shown that the determination of the Appointments Committee of the Cabinet suffered from arbitrariness or malafides and capriciousness, the same could not be interfered with. The Division Bench of the High Court having found none of the above noted vices in the determination of the Appointments Committee of the Cabinet, answered the second question also in the negative.

13. Based on its aforementioned determination, the High Court dismissed Writ Appeal No. 779 of 2009, on 21.7.2009. Dissatisfied with the order dated 5.5.2009 (passed by the Single Judge of the High Court, dismissing Writ Petition No. 15508 of 2009), and the order dated 21.7.2009 (passed by the Division Bench of the High Court dismissing Writ Appeal No. 779 of 2009), the appellant approached this Court by filing Petition for Special Leave to Appeal (C) No. 2008 of 2010. On 11.1.2010 this Court issued notice in this matter. On completion of pleadings the matter was listed for final disposal.

14. Leave granted.

15. On 29.8.2013 while hearing the matter this Court passed the following order:
“Before we proceed for further hearing in the matter, we would like to go through the deliberations of the Appointments Committee of the Cabinet [for short ‘the ACC’] by which the recommendations of the Selection Board was not accepted in the case of the petitioner.
Hence the records of the Selection Board and the final orders passed therein in the case of the petitioner be placed before the Court on the next date of hearing, i.e., 10th September, 2013.”

Thereafter on 12.9.2013 this Court passed the following order:
“We have perused the record produced before us and we have also heard the arguments of learned Additional Solicitor General”
Ld. A.S.G. has sought time to seek instructions.
On the next date, Ld. A.S.G. will ensure that a copy of the note put up to the A.C.C. and the decision of A.C.C. as well as a copy of the recommendation dated 27th February, 2008 of the Selection Board are made available to the Court List this matter on 23rd September, 2013.”

The summoning of the record referred to in the orders extracted hereinabove, had become essential for two reasons. Firstly, the appellant did not contest the findings recorded by the Division Bench of the High Court on the two questions framed by the High Court, for the disposal of Writ Appeal No. 779 of 2009. Having given our thoughtful consideration to the determination rendered by the High Court, on the two questions framed by it, we must acknowledge that the High Court was fully justified in drawing its conclusions. We therefore hereby affirm the above findings recorded by the High Court. According to the appellant, the High Court had misdirected itself in its above determination. It was the submission of the appellant, that the determination of the Appointments Committee of the Cabinet, was not supported by justifiable reasons. It was asserted, that the determination of the Appointments Committee of the Cabinet was arbitrary, and based on extraneous consideration. Insofar as the instant aspect of the matter is concerned, it was the vehement submission of the appellant, that the High Court had not addressed the issue at all.

16. The solitary contention advanced at the hands of the appellant, was based on the recommendation made by the Selection Board on 27.2.2008, and the consideration of the above recommendation by the Appointments Committee of the Cabinet (leading to the rejection of the appellant’s claim for the promotion to the rank of Lieutenant General). For effectively understanding and determining the solitary contention at the hands of the appellant, it is essential to extract the minutes of the meeting of the Selection Board dated 27.2.2008, as also, the proceedings of the Appointments Committee of the Cabinet. Without understanding the tenor and effect of the above deliberations, it would not be possible to express our findings and the reasons. Had the above proceedings revealed sensitive material, improper for public consumption, or detrimental to national interest, we would have chosen to tread cautiously. The deliberations which resulted in denial of promotion to the appellant (to the rank of Lieutenant General), however, have no such misgivings. We have therefore no hesitation in extracting the minutes of the meeting of the Selection Board dated 27.2.2008. The same are being reproduced hereinunder:-

“MINUTES OF (1/2008) DRDO SELECTION BOARD MEETING HELD ON 27 FEB 2008
The Selection Board comprising the following, met on 27 Feb 08 in the office of the Scientific Advisor to Raksha Mantri, Room No. 532, DRDO Bhawan, New Delhi:-
(a) Shri M. Natarajan, SA to RM – Chairman
(b) Shri Pradeep Kumar, Secretary (DP) – Member
(c) Lt. Gen. M.L. Naidu,
PVSM, AVSM, YSM, VCOAS – Member
(d) Dr. D. Banerjee,
DS & CC R&D (AMS) – Member Secretary
2. Defence Secretary did not attend the meeting due to other prior commitments.
3. SA to RM briefed the Board to say that only one vacancy in the rank of Lt. Gen exists. The other vacancy in lieu of Scientist ‘H’ has been referred back to the RM for reconsideration and therefore will be considered only after a decision.

4. The Board considered the following 04 officers for promotion to the acting rank of Lt. Gen:-

Ser No. IC No., Rank, Name & Corps
(i) MR-03539 Maj Gen J.K. Bansal, AMC
(ii) IC-23289 Maj Gen H.M. Singh, VSM, AC
(iii) IC-23850 Maj Gen S.S. Dahiya, AVSM, VSM EME
(iv) IC-24631 Maj Gen Umang Kapoor, EME

5. Based on deliberations and record of service, past performance, qualities of leadership as well as vision, the Board recommends IC-23289 Maj Gen HM Singh, VSM, AC for promotion.

Sd/-
DS&CC R&D (AMS)
Member Secretary

Sd/-
VCOAS
Member”
(emphasis is ours)

The proceedings recorded by the Appointments Committee of the Cabinet while rejecting the appellant’s claim for promotion to the rank of Lieutenant General are also being set out below:-

“The Ministry of Defence has, with the approval of the Raksha Mantri proposed the promotion of IC-23289 Maj Gen HM Singh, a permanently seconded officer of the DRDO, to the rank of Lieutenant General.
2. Maj Gen HM Singh (dob: 02.02.1949) was due for superannuation on 29th February, 2008 on attaining the age of 59 years which is the age of superannuation for officers of the rank of Major Generals who are permanently seconded to the DRDO. A Selection Board which met on 27th February, 2008 to consider eligible officers of the rank of Major General permanently seconded to the DRDO for promotion to the rank of Lieutenant General, recommended Major General Singh for promotion. As the officer was due for retirement on 29th February, 2008 approval of the Raksha Mantri was obtained for giving him extension of service of three months in the rank of Major General or till the approval of the Appointments Committee of the Cabinet to his promotion to the rank of Lieutenant General, whichever is earlier. Officers in the rank of Lieutenant General retire on attaining the age of 60 years.
3. The propriety of grant of extension to the officer at the verge of his superannuation and also, that of grant of promotion to the officer while on extension has been examined. The matter has been discussed, separately, with officers from the Department of Personnel and Training; the DRDO, and also, the Ministry of Defence (Military Secretary’s Branch). This apart, a legal notice has been received alleging perjury on the basis of information secured from the Ministry of Defence under the Right to Information Act. A representation has also been received from an officer, Maj Gen PP Das, alleging discrimination.
4. In terms of the provisions of Section 16A(4) of the Army Act an officer who has attained the age of retirement or has become due for such retirement on completion of his tenure, may be retained in the service for a further period by the Central Government, if the exigencies of the service so require.
5. It is evident from the above provisions that for grant of extension in service, the requirement to be fulfilled, primarily, is the exigencies of service. In the note which was put up to the Raksha Mantri soliciting approval to the proposal for grant of extension, no such exigency has been cited. The only issue that was mentioned in support of the proposal for extension was that the officer had been recommended for promotion to the rank of Lieutenant General. This in the background of the provisions of the Act mentioned above, is no sufficient ground for extension.
6. The Chief Controller Research & Development with whom the matter was discussed has provided copies of orders issued in the years 1995 and 1996 when officers of the rank of Major General were granted extensions. Extensions in service were granted with the approval of the Integrated Finance Division in the Ministry of Defence though approval of the finance angle is not strictly relevant to the grant of extensions. The other two instances cited are of Shri P. Venugopalan, Outstanding Scientist in the DRDL, Hyderabad who was granted extension pending a decision on the question of his regular extension under FR.56 as a Scientist; and of the post retirement appointment of Vice Admiral PC Bhasin on contract basis in the ATVP. These two cases are not relevant to the case of Maj Gen Singh, present under consideration.
7. An instance has been cited, during discussions, of extension of service granted in the year 1997 or thereabouts to Major General Malik who was due for superannuation, and his promotion to the rank of Lt. Gen while on extension.
8. The orders issued by the Department of Personnel and Training lay down that while extension could be granted in exceptional circumstances, there can be no promotion during the period of such extension. These orders apply to the civilian establishment. The instructions which apply to the Defence forces permit extension in service only if the exigencies so demand. DRDO is mainly civilian, and the Rules, as mentioned above, do not permit promotion on extension.
9. The above apart, the plea taken the representation of Maj Gen P.P. Das, and also the legal notice needs to be kept in view. Instances of officers in the Armed Forces retiring just before the vacancies coming their way and being denied empanelment are not uncommon. Extensions motivated by reasons of promotion being close at hand can have repercussions.
10. The above part, the ACR format which is followed for the officers of this rank, seconded to the DRDO, which has been applied for recording of ACRs in the present case reveal that fitness for promotion should be specifically recorded in the ACr. A perusal of the ACR of Maj Gen Singh reveals that specific record of fitness for promotion has not been made.
11. More pointedly, two questions stand out, firstly, the doubtful authority and grounds for granting extensions, taking into account that there was no exigency and, secondly, extensions, motivated by a promotion in the offing during the extension period cannot be allowed. It cannot be ignored also that such situations trigger litigation, which should best be avoided in such instances.
12. Under the above circumstances, it would be appropriate not to approve the promotion of Maj Gen H.M. Singh to the rank of Lieutenant General.

Sd/-
Cabinet Secretary
22.5.2008

HOME MINISTER
Sd/-
28.5.2008

PRIME MINISTER has approved Para 12 above with the direction that the observation in Paras 5 and 8 may be communicated to the MOD for the future.

Sd/-
Cabinet Secretary
2.6.2008

Sd/-
30.5.2008
Director
Prime Minister’s Office
New Delhi”
(emphasis is ours)

17. The appellant points out, that the determination of the Appointments Committee of the Cabinet, overlooked the factual position stated in the counter affidavit, filed jointly on behalf of respondent nos. 1 and 2 (respondent no.1 – the Union of India, through Secretariat of the Appointments Committee of the Cabinet; and respondent no. 2 – the DRDO through its Director General). In this behalf our attention was drawn to paragraphs 3 (xvii) and 3 (xviii) which are being extracted below:

“3 (xvii) A meeting of the Selection Board was held on 27.2.2008 and the Selection Board recommended the name of the petitioner for promotion to the rank of Lieutenant General. The post of Lieutenant General then carried the pay scale of Rs.22400-525-24500. Any appointment against this post requires the approval of Appointments Committee of the Cabinet (ACC) (Respondent No.1), which is a high power body consisting of the Hon’ble Prime Minister of India, Hon’ble Union Home Minister, Hon’ble Union Minister of Department of Personnel and Hon’ble Union Defence Minister. As such, the recommendation of the Selection Board were sent to ACC. In DRDO, the retirement age of an officer of the rank of Maj Gen/equivalent which the petitioner held at that time is 59 years. The petitioner was due to retire from service w.e.f 29.2.2008. Under these circumstances, he was given an extension of service for a period of three months or till the decision of ACC was received whichever was earlier. As the decision of ACC was not received till 31.5.2008, his service was extended further for a period of one month w.e.f 1.6.2008 on the same terms and conditions.
3 (xviii) The decision of ACC (Respondent No.1) regarding nonapproval of promotion of the petitioner to the rank of Lieutenant General communicated vide letter dated 2.6.2008 was received by respondent no. 2 on 3.6.2008 and the latter had to issue orders of the petitioner’s retirement from service from 3.6.2008.”
(emphasis is ours)

18. Referring to the factual position depicted in the joint counter affidavit filed on behalf of the respondent nos. 1 and 2, it was the vehement submission of the appellant, that the Appointments Committee of the Cabinet exceeded its jurisdiction in examining the validity of the orders by which the appellant was granted extension in service. It was the submission of the appellant, that the only question before the Appointments Committee of the Cabinet, consequent upon the recommendations made by the Selection Board on 27.2.2008, was in connection with the merits of the claim of the appellant, for promotion to the rank of Lieutenant General. Adding to the above contention, it was also the submission of the appellant, that the Selection Board, consequent upon its deliberations held on 27.2.2008, arrived at its findings based on the appellant’s service record, past performance, qualities of leadership, as well as, vision, that the appellant was worthy of promotion to the rank of Lieutenant General. The Appointments Committee of the Cabinet, during the course of its deliberations, did not find fault with the above conclusion drawn by the Selection Board. As such, it was sought to be asserted, that even the Appointments Committee of the Cabinet must be deemed to have endorsed the merit and suitability of the appellant, for promotion to the rank of Lieutenant General.

19. In order to contest the submissions advanced at the hands of the appellant, learned senior counsel representing (respondent nos. 1 and 2) emphatically relied upon the proceedings of the Appointments Committee of the Cabinet. The proceedings under reference have been extracted by us hereinabove. Referring to the above proceedings, learned senior counsel for the respondents laid great emphasis on the observations recorded in paragraphs 8 and 9 thereof. It was pointed out, that in terms of the orders issued by the Department of Personnel and Training, promotion during the period of extension was unquestionably barred. In this behalf it was the contention of the learned senior counsel for the respondents, that with effect from 1.3.2008, the appellant (who had attained the age of retirement on superannuation on 29.2.2008), was on extension in service. There was, therefore, no question of his being considered for promotion during the period of such extension. In addition to the aforesaid categoric stand adopted by the learned senior counsel for the respondents, it was sought to be reiterated, that the orders dated 29.2.2008 and 30.5.2008, by which the appellant was granted extension in service, for periods of three months and one month respectively, were not sustainable in law, inasmuch as, they were in violation of Rule 16A of the Army Rules which postulates, that an officers who has attained the age of retirement or has become due for such retirement on completion of his tenure, may be retained in service for a further period by the Central Government, only if the exigencies of service so require. It was the submission of learned senior counsel for the respondents, that retention in service of the appellant was not on account of any exigency of service.

20. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties. First and foremost, we have no hesitation in endorsing the submission advanced at the hands of the appellant, that the Appointments Committee of the Cabinet did not in any manner upset the finding recorded by the Selection Board, in respect of the merit and suitability of the appellant for promotion to the rank of Lieutenant General. On the instant aspect of the matter, the Appointments Committee of the Cabinet has maintained a sullen silence. Even in the pleadings filed on behalf of the respondents, there is an ironic quiescence. Therefore, all other issues apart, the appellant must be deemed to have been found suitable for promotion to the rank of Lieutenant General, even by the Appointments Committee of the Cabinet.

21. We have extracted hereinabove the factual position noticed by the respondents in paragraphs 3(xvii) and 3(xviii) of their counter affidavit. If the aforesaid averments are read in conjunction to the factual position, that the vacancy against which the claim of the appellant was considered, had arisen on 1.1.2007, it clearly emerges, that the appellant was the senior most eligible officer holding the rank of Major General whose name fell in the zone of consideration for promotion. The Selection Board having conducted its deliberations singularly chose the name of the appellant from the panel of four names before it. The proceedings of the Selection Board reveal, that its recommendations were based on record of service, past performance, qualities of leadership, as well as, vision. No other name besides the appellant’s name was recommended for promotion. Having been so recommended, the President of India, in the first instance, by an order dated 29.2.2008, extended the service of the appellant, for the period of three months with effect from 1.3.2008 “or till the approval of the ACC whichever is earlier”. Since the Appointments Committee of the Cabinet did not render its determination within the extended period expressed in the order dated 29.2.2008, yet another order to the same effect was issued by the President of India on 30.5.2008 extending the service of the appellant for a further period of one month with effect from 1.6.2008 “or till the approval of the ACC whichever is earlier”. The President of India, therefore, was conscious of the fact while granting extension in service to the appellant, the appellant’s case for onward promotion to the rank of Lieutenant General was under consideration. Therefore, to ensure that the aforesaid consideration fructified into a result one way or the other, extensions were granted to the appellant twice over. The aforesaid determination at the hands of the President of India in granting extension in service to the appellant, stands noticed in the factual position expressed in paragraphs 3(xvii) and 3(xviii) of the counter affidavit filed on behalf of the respondents 1 and 2. It is not possible for us to accept, that the aforesaid determination in allowing extension in service to the appellant can be described as being in violation of the norms stipulated in Rule 16A of the Army Rules. It is necessary in this behalf, for us to test the above conclusion drawn by us, on the touchstone of Articles 14 and 16 of the Constitution of India. It is not a matter of dispute, that the appellant was promoted to the rank of substantive Major General with effect from 7.1.2004. It is also not a matter of dispute, that the substantive vacancy in the rank of Lieutenant General, against which the appellant was eligible for consideration, became available with effect from 1.1.2007. Even though the appellant had nearly 14 months of military service remaining at the aforesaid juncture, the procedure contemplated for making promotions to the rank of the Lieutenant General was initiated for the first time just two days before the date of retirement of the appellant, on 27.2.2008. Although it is the contention of the learned senior counsel for the respondents, that the delay in convening the Selection Board and conducting its proceedings was not deliberate or malafide, yet there can be no doubt about the fact, that the appellant was not responsible for such delay. For all intents and purposes, he was repeatedly seeking consideration orally as well as in writing. He had been repeatedly informing the authorities about the approaching date of his retirement. In response, he was always assured, that if found suitable, he would be actually promoted prior to the date of his retirement. It was for the respondents to convene the meeting of the Selection Board. Since the Selection Board came to be convened for the vacancy which had arisen on 1.1.2007 only on 27.2.2008, the respondents must squarely shoulder the blame and responsibility of the above delay.

22. The question that arises for consideration is, whether the nonconsideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition, that the respondents were desirous of filling the vacancy of Lieutenant General, when it became available on 1.1.2007. The factual position depicted in the counter affidavit reveals, that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view, that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential order dated 29.2.2008, and thereafter, by a further Presidential order dated 30.5.2008. The above orders clearly depict, that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant General, (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet), stands affirmed. The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant General, would have resulted in violation of his fundamental right under Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary. We are therefore of the view, firstly, that the order allowing extension in service of the appellant for a period of three months, dated 29.2.2008, and the order allowing further extension in service by one month to the appellant, dated 30.5.2008, so as to enable his claim to be considered for onward promotion to the rank of Lieutenant General, cannot be held to be in violation of the statutory provisions. Rule 16A of the Army Rules, postulates extension in service, if the exigencies of service so require. The said parameter must have been duly taken into consideration when the Presidential Orders dated 29.2.2008 and 30.5.2008 were passed. The respondents have neither revoked, nor sought revocation of the above orders. Therefore, it does not lie in the mouth of the respondents to question the veracity of the above orders. The above orders were passed to ensure due consideration of the appellant’s claim for promotion to the rank of Lieutenant General. Without rejecting the above claim on merits, the appellant was deprived of promotion to the rank of Lieutenant General. Besides the above, we are also of the considered view, that consideration of the promotional claim of the senior most eligible officer, would also fall in the parameters of the rule providing for extension, if the exigencies of service so require. It would be a sad day if the armed forces decline to give effect to the legitimate expectations of the highest ranked armed forces personnel. Specially when, blame for delay in such consideration, rests squarely on the shoulders of the authorities themselves. This would lead to individual resentment, bitterness, displeasure and indignation. This could also undoubtedly lead to, outrage at the highest level of the armed forces. Surely, extension of service, for the purpose granted to the appellant, would most definitely fall within the realm of Rule 16A of the Army Rules, unless of course, individual resentment, bitterness, displeasure and indignation, of army personnel at the highest level is of no concern to the authorities. Or alternatively, the authorities would like to risk outrage at the highest level, rather than doing justice to a deserving officer. Reliance on Rule 16A, to deprive the appellant of promotion, to our mind, is just a lame excuse. Accordingly, extension in service granted to the appellant, for all intents and purposes, in our considered view, will be deemed to satisfy the parameters of exigency of service, stipulated in Rule 16A of the Army Rules.

23. While dealing with the issue of consideration of the appellant’s claim for onward promotion to the rank of Lieutenant General, it is necessary for us to also conclude by observing, that had the claim of the appellant not been duly considered against the vacancy for the post of Lieutenant General, which became available with effect from 1.1.2007, we would have had to hold, that the action was discriminatory. This because, of denial of due consideration to the appellant, who was the senior most eligible serving Major General, as against the claim of others who were junior to him. And specially when, the respondents desired to fill up the said vacancy, and also because, the vacancy had arisen when the appellant still had 14 months of remaining Army service. Surely it cannot be over looked, that the Selection Board had singularly recommended the name of the appellant for promotion, out of a panel of four names. In such an eventuality, we would have no other alternative but to strike down the action of the authorities as being discriminatory and violative of Article 16 of the Constitution of India.

24. The deliberations recorded by us hereinabove are incomplete, inasmuch as, we have not answered the pointed objection raised by the learned senior counsel for the respondent nos. 1 and 2, namely, that an officer is not entitled to promotion during the period of extension in service. For the instant objection raised at the hands of the respondents, it is necessary to refer to the deliberations of the Appointments Committee of the Cabinet, and specially paragraphs 8 and 9 thereof. A collective reading of the paragraphs 8 and 9 reveals an extremely relevant objective, namely, situations wherein an officer attains the age of retirement without there being a vacancy for his consideration to a higher rank, even though he is eligible for the same. Such an officer who is granted extension in service, cannot claim consideration for promotion, against a vacancy which has become available during the period of his extension in service. The above conclusion drawn by us is clearly apparent from the paragraph 9 of the proceedings of the Appointments Committee of the Cabinet. In fact in the operative part of the proceedings recorded in paragraph 11, it has been noticed, that .”…extensions motivated by a promotion in the offing during the extension period cannot be allowed…” We can derive only one meaning from the above observations, namely, extension being granted for promotion against a vacancy in the offing. That is to say, retention in service, so as to consider an officer for a vacancy which has not become available prior to his retirement, but is in the offing. The above reason recorded in the operative part of the proceedings of the Appointments Committee of the Cabinet, is laudible and legal. Insofar as the present controversy is concerned, there is no doubt whatsoever, that a clear vacancy against the rank of Lieutenant General became available with effect from 1.1.2007. At that juncture, the appellant had 14 months of service remaining. It is not as if the vacancy came into existence after the appellant had reached the age of retirement on superannuation. The present case is therefore, not covered by the technical plea canvassed at the hands of the learned senior counsel for the respondents. The denial of promotion to the appellant mainly for the reason, that the appellant was on extension in service, to our mind, is unsustainable besides being arbitrary, specially in the light of the fact, that the vacancy for which the appellant was clamouring consideration, became available, well before the date of his retirement on superannuation. We have, therefore, no hesitation in rejecting the basis on which the claim of the appellant for onward promotion to the rank of Lieutenant General was declined, by the Appointments Committee of the Cabinet.

25. In view of the fact, that we have found the order of rejection of the appellant’s claim for promotion to the rank of Lieutenant General, on the ground that he was on extended service to be invalid, we hereby set aside the operative part of the order of the Appointments Committee of the Cabinet. It is also apparent, that the Selection Board had recommended the promotion of the appellant on the basis of his record of service, past performance, qualities of leadership, as well as, vision, out of a panel of four names. In its deliberations the Appointments Committee of the Cabinet, did not record any reason to negate the aforesaid interference, relating to the merit and suitability of the appellant. We are therefore of the view, that the appellant deserves promotion to the rank of Lieutenant General, from the date due to him. Ordered accordingly. On account of his promotion to the post of Lieutenant General, the appellant would also be entitled to continuation in service till the age of retirement on superannuation stipulated for Lieutenant Generals, i.e., till his having attained the age of 60 years. As such, the appellant shall be deemed to have been in service against the rank of Lieutenant General till 28.2.2009. Needless to mention, that the appellant would be entitled to all monetary benefits which would have been due to him, on account of his promotion to the rank of Lieutenant General till his retirement on superannuation, as also, to revised retiral benefits which would have accrued to him on account of such promotion. The above monetary benefits shall be released to the appellant within three months from the date a certified copy of this order becomes available with the respondents.

26. Allowed in the aforesaid terms.

…..…………………………….J.
(A.K. Patnaik)
…..…………………………….J.
(Jagdish Singh Khehar)

New Delhi;
January 9, 2014.

The post Major General H.M. Singh, VSM Vs Union of India and Anr. appeared first on B&B Associates LLP.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4854 OF 2009
M/s. Bhagwati Vanaspati Traders …. Appellant
versus
Senior Superintendent of Post Offices, Meerut …. Respondent

J U D G M E N T

Jagdish Singh Khehar, J.
1. M/s. Bhagwati Vanaspati Traders, the appellant before us, is a proprietorship concern. Mr. B.K. Garg is its sole proprietor. On 28.4.1995, M/s. Bhagwati Vanaspati Traders purchased one, six years’ National Savings Certificate (hereinafter referred to as, NSC) bearing number 6NS/06DD 387742, by investing a sum of Rs.5,000/-. The above NSC was to mature on 28.4.2001. The maturity amount payable on 28.4.2001 was Rs.10,075/-.

2. Since M/s. Bhagwati Vanaspati Traders was not paid the amount due on maturity, B.K. Garg made repeated visits to the office from where the NSC was purchased. He was informed, that an NSC could only be issued in the name of an individual, and that, the NSC taken in the name of M/s. Bhagwati Vanaspati Traders, was not valid. He was also informed, that the matter had been referred for advice to the Post Master General, Bareilly, and that, the question of payment of the maturity amount would be considered only after the receipt of inputs from Bareilly.

Having waited for a substantial length of time, and realizing that no further action had been taken at the hands of the respondent, B.K. Garg visited the office of the Post Master General, Bareilly. At Bareilly he was informed, that the matter had been referred to the Director General (Post), Department of Posts, New Delhi, and that, he would have to await the decision of the Director General (Post). Having waited long enough, without any fruitful result, M/s. Bhagwati Vanaspati Traders preferred Complaint Case no. 513 of 2004 before the District Consumer Disputes Redressal Forum, Meerut (hereinafter referred to as, the District Forum).
The District Forum, by its order dated 1.2.2007 accepted the claim of M/s. Bhagwati Vanaspati Traders, and accordingly, directed the respondent to pay the maturity amount of Rs.10,075/- with 12% interest, from the date of maturity till the date of payment. The respondent was additionally directed to pay, a sum of Rs.5,000/- as compensation, and also cost of Rs.2,000/-, to the appellant proprietorship concern.

3. Dissatisfied with the order dated 1.2.2007, passed by the District Forum in favour of the appellant, the respondent Senior Superintendent of Post Offices, Meerut, preferred Appeal no. 460 of 2007 before the State Consumer Disputes Redressal Commission, Lucknow. The aforestated appeal was allowed by the State Commission vide its order dated 21.1.2008. The appellant concern then preferred Revision Petition no. 1456 of 2008 before the National Consumer Disputes Redressal Commission, New Delhi. The National Commission dismissed the revision petition, vide the impugned order dated 4.9.2008. The special leave to appeal preferred by the appellant, against the impugned order dated 4.9.2008, was granted by this Court on 27.7.2009.

4. A perusal of the orders passed by the State Commission, as also, the National Commission reveals, that the same were premised on the fact, that the NSC purchased by M/s. Bhagwati Vanaspati Traders, had an irregularity, inasmuch as, an NSC could only be purchased by an individual, and the same could not be issued in the name of a concern, firm, institution, banking institution or company etc. On account of the aforesaid irregularity, the respondent placed reliance on rule 17 of the Post Office Savings Bank General Rules, 1981. The above rule is being extracted hereunder:-
“17. Account opened in contravention of rules:- Subject to the provision of rule 16, where an account is found to have been opened in contravention of any relevant rule for the time being in force and applicable to the account kept in the Post Office Savings Bank, the relevant Head Savings Bank may, at any time, cause the account to be closed and the deposits made in the account refunded to the depositor without interest.” In addition to the above, the respondent had placed reliance on a decision rendered by this Court in Post Master, Dargamitta HPO, Nellor v. Raja Prameeelamma, (1998) 9 SCC 706, wherein this Court had held as under:- “But as this contract was contrary to the terms notified by the Government of India and this was due to inadvertence of the staff. In my opinion it does not become a contract binding the Government of India being unlawful and void. As such this is not a case of deficiency in service either in terms of the law or in terms of the contract as defined in Section 2(1)(g) of the Consumer Protection Act, 1986.”

(emphasis is ours)

During the course of hearing, learned counsel for the respondent, in addition to the judgment extracted hereinabove, placed reliance on a recent decision rendered by this Court in Arulmighu Dhandayadhapaniswamy Thirukoil, Palani, Tamil Nadu v. Director General of Post Offices, Department of Posts & Ors., (2011) 13 SCC 220, and drew our attention to the following conclusions recorded therein;- “18. This Court in Raja Prameeelamma case, (1998) 9 SCC 706, held that even though the certificates contained the terms of contract between the Government of India and the holders of the National Savings Certificate, the terms in the contract were contrary to the Notification and therefore the terms of contract being unlawful and void were not binding on the Government of India and as such the Government refusing to pay interest at the rate mentioned in the Certificate is not a case of deficiency in service either in terms of law or in terms of contract as defined under Section 2(1)(g) of the Consumer Protection Act, 1986. The above said decision is squarely applicable to the case on hand.
19. It is true that when the Appellant deposited a huge amount with the third Respondent from 5.5.1995 to 16.8.1995 under the Scheme for a period of five years, it was but proper on the part of the Post Master to have taken a note of the correct Scheme applicable to the deposit. It was also possible for the Postmaster to have ascertained from the records, could have applied the correct Scheme and if the Appellant, being an institution, was not eligible to avail the Scheme and advised them properly. Though Mr. S. Aravindh, learned Counsel for the Appellant requested this Court to direct the third Respondent to pay some reasonable amount for his lapse, inasmuch as such direction would go contrary to the Rules and payment of interest is prohibited for such Scheme in terms of Rule 17, we are not inclined to accept the same.”

(emphasis is ours)

Based on the decision of this Court relied upon by the State Commission, as also, the National Commission in the impugned orders dated 21.1.2008 and 4.9.2008 respectively, as also, the latest judgment rendered by this Court in Arulmighu Dhandayadhapaniswamy Thirukoil case (supra), it was the emphatic contention of the learned counsel for the respondent, that there was no question of release of the maturity amount to the appellant.

5. It was also the contention of the learned counsel for the respondent, that the mistake at the hands of the postal authorities was innocent. After the appellant’s claim was examined, a preliminary enquiry disclosed, that the NSC was issued to M/s. Bhagwati Vanaspati Traders by Ved Bahadur Singh (an employee of the postal department). A departmental proceeding was held against the above employee, and he was duly punished. Accordingly it was sought to be asserted, that it was not as if, the postal authorities were intentionally depriving the appellant of the benefits of the NSC purchased by him on 28.4.1995. The deprivation of the appellant, according to learned counsel, was based on a pure determination of the legal rights of the appellant.

6. The first contention advanced at the hands of the learned counsel for the appellant was based on the decision rendered by this Court in Tata Iron & Steel Co. Ltd. v. Union of India & Ors., (2001) 2 SCC 41, wherefrom learned counsel invited our attention to the following observations:-
“20. Estoppel by conduct in modern times stands elucidated with the decisions of the English Courts in Pickard v. Sears, 1837 6 Ad. & El. 469, and its gradual elaboration until placement of its true principles by the Privy Council in the case of Sarat Chunder Dey v. Gopal Chunder Laha, (1891-92) 19 IA 203, whereas earlier Lord Esher in the case of Seton Laing Co. v. Lafone, 1887 19 Q.B.D. 68, evolved three basic elements of the doctrine of Estoppel to wit:
“Firstly, where a man makes a fraudulent misrepresentation and another man acts upon it to its true detriment: Secondly, another may be where a man makes a false statement negligently though without fraud and another person acts upon it: And thirdly, there may be circumstances under which, where a misrepresentation is made without fraud and without negligence, there may be an Estoppel.” Lord Shand, however, was pleased to add one further element to the effect that there may be statements made, which have induced other party to do that from which otherwise he would have abstained and which cannot properly be characterized as misrepresentation. In this context, reference may be made to the decisions of the High Court of Australia in the case of Craine v. Colonial Mutual Fire Insurance Co. Ltd., 1920 28 C.L.R. 305. Dixon, J. in his judgment in Grundt v. The Great Boulder Pty. Gold Mines Pty. Ltd., 1938 59 C.L.R. 641, stated that:
“In measuring the detriment, or demonstrating its existence, one does not compare the position of the representee, before and after acting upon the representation, upon the assumption that the representation is to be regarded as true, the question of estoppel does not arise. It is only when the representor wished to disavow the assumption contained in his representation that an estoppel arises, and the question of detriment is considered, accordingly, in the light of the position which the representee would be in if the representor were allowed to disavow the truth of the representation.”
(In this context see Spencer Bower and Turner: Estoppel by Representation, 3rd Ed.). Lord Denning also in the case of Central Newbury Car Auctions Ltd. v. Unity Finance Ltd., 1956 (3) All ER 905, appears to have subscribed to the view of Lord Dixon, J. pertaining to the test of ‘detriment’ to the effect as to whether it appears unjust or unequitable that the representator should now be allowed to resile from his representation, having regard to what the representee has done or refrained from doing in reliance on the representation, in short, the party asserting the estoppel must have been induced to act to his detriment. So long as the assumption is adhered to, the party who altered the situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs, the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment, (vide Grundts: High Court of Australia (supra)).

21. Phipson on Evidence (Fourteenth Edn.) has the following to state as regards estoppels by conduct. “Estoppels by conduct, or, as they are still sometimes called, estoppels by matter in pais, were anciently acts of notoriety not less solemn and formal than the execution of a deed, such as livery of seisin, entry, acceptance of an estate and the like, and whether a party had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed (Lyon v. Reed, (1844) 13 M & W 285 (at p. 309).
The doctrine has, however, in modern times, been extended so as to embrace practically any act or statement by a party which it would be unconscionable to permit him to deny. The rule has been authoritatively stated as follows: ‘Where one by his words or conduct willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter this own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.’ (Pickard v. Sears (supra)). And whatever a man’s real intention may be, he is deemed to act willfully ‘if he so conducts himself that a reasonable man would take the representation to be true and believe that it was meant that he should act upon it.’ (Freeman v. Cooke, 1848 (2) Exch. 654: at p. 663).
Where the conduct is negligent or consists wholly of omission, there must be a duty to the person misled (Mercantile Bank v. Central Bank, 1938 AC 287 at p. 304, and National Westminster Bank v. Barclays Bank International, 1975 Q.B. 654). This principle sits oddly with the rest of the law of estoppel, but it appears to have been reaffirmed, at least by implication, by the House of Lords comparatively recently (Moorgate Mercantile Co. Ltd. v. Twitchings, (1977) AC 890). The explanation is no doubt that this aspect of estoppel is properly to be considered a part of the law relating to negligent representations, rather than estoppel properly so-called. If two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time, neither can be estopped as against the other from asserting differently at another time (Square v. Square, 1935 P. 120).”

22. A bare perusal of the same would go to show that the issue of an estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status. The contextual facts however, depict otherwise. Annexure 2 to the application form for benefit of price protection contains an undertaking to the following effect:-
“We hereby undertake to refund to EEPC Rs… the amount paid to us in full or part thereof against our application for price protection. In terms of our application dated against exports made during… In case any particular declaration/certificate furnished by us against our above referred to claims are found to be incorrect or any excess payment is determine to have been made due to oversight/wrong calculation etc. at any time.
We also undertake to refund the amount within 10 days of receipt of the notice asking for the refund, failing which the amount erroneously paid or paid in excess shall be recovered from or adjusted against any other claim for export benefits by EEPC or by the licensing authorities of CCI & C.” and it is on this score it may be noted that in the event of there being a specific undertaking to refund for any amount erroneously paid or paid in excess

(emphasis supplied),

question of there being any estoppel in our view would not arise. In this context correspondence exchanged between the parties are rather significant. In particular letter dated 30.11.1990 from the Assistant Development Commissioner for Iron & Steel and the reply thereto dated 8.3.1991 which unmistakably record the factum of non-payment of JPC price.”

(emphasis is ours)

Based on the aforesaid observations it was the emphatic contention of the learned counsel for the appellant, that the rule of estoppel would come to the aid of the appellant, inasmuch as, the appellant having been consciously permitted to purchase the NSC, could not be denied the benefit of the maturity amount by asserting, that there was some irregularity in the purchase of the NSC.

7. It is not possible for us to accept the applicability of the principle of estoppel in the facts and circumstances of this case. No representation is ever shown to have been made to the appellant. It was the appellant’s individual decision to purchase the NSC. It is not shown, that a fraudulent representation was made to the appellant. It is also not shown, that a false statement was negligently made to the appellant. The rule of estoppel, in the present case, could have only been premised on some conduct of the respondent, which had willfully induced the appellant to invest in the NSC.
Unfortunately, for the appellant, no such willful conduct has been brought to our notice. Having given our thoughtful consideration to the instant aspect of the matter, we feel that this case would be governed by the proposition evolved in Moorgate Mercantile Co. Ltd. v. Twitchings, (1977) AC 890, namely, where two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time, neither can be estopped against the other. Therefore, whilst it cannot be disputed, that the authorities issuing the NSC were required to ensure, that the same was issued to only such persons who were eligible in law to purchase the same, yet in terms of the mandate of rule 17 extracted hereinabove, the vires whereof is not subject matter of challenge, it is not possible for us to accept, that the rule of estoppel could be relied upon at the behest of the appellant, for any fruitful benefit.

8. To overcome the mandate of rule 17 extracted hereinabove, as also, the decision rendered by this Court in Raja Prameeelamma case (supra), and the proposition of law declared in Arulmighu Dhandayadhapaniswamy Thirukoil case (supra), learned counsel for the appellant placed emphatic reliance on the decision of this Court in Ashok Transport Agency v. Awadhesh Kumar & another., (1998) 5 SCC 567. He invited our attention to the following observations recorded therein:-
“6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business.
The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business “insofar as the nature of such case permits”. This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case.”

(emphasis is ours)

Based on the observations recorded in the aforesaid judgment, the second contention advanced by the learned counsel for the appellant was, that in sum and substance, a sole proprietorship concern allows the fictional use of a trade name on behalf of an individual. It was contended, that truthfully only one individual is the owner of a sole proprietorship concern. As such, according to learned counsel, the name of the sole proprietorship concern, can again be substituted with the name of the sole proprietor. If that is allowed, the NSC purchased by the appellant would strictly conform to the mandate of law. According to learned counsel, it makes no difference whether the individual’s name, or the proprietorship’s name is recorded while purchasing an NSC. It was pointed out, that if the respondent was not agreeable in accepting the trade name, the respondent ought to have corrected the NSC by substituting the name of M/s. Bhagwati Vanaspati Traders with that of its sole proprietor, namely, B.K. Garg.

9. We find merit in the second contention advanced at the hands of the learned counsel for the appellant. It is indeed true, that the NSC was purchased in the name of M/s. Bhagwati Vanaspati Traders. It is also equally true, that M/s. Bhagwati Vanaspati Traders is a sole proprietorship concern of B.K. Garg, and as such, the irregularity committed while issuing the NSC in the name of M/s. Bhagwati Vanaspati Traders, could have easily been corrected by substituting the name of M/s. Bhagwati Vanaspati Traders with that of B.K. Garg. For, in a sole proprietorship concern an individual uses a fictional trade name, in place of his own name. The rigidity adopted by the authorities is clearly ununderstandable.
The postal authorities having permitted M/s. Bhagwati Vanaspati Traders to purchase the NSC in the year 1995, could not have legitimately raised a challenge of irregularity after the maturity thereof in the year 2001, specially when the irregularity was curable. Legally, rule 17 of the Post Office Savings Bank General Rules, 1981, would apply only when an applicant is irreregularly allowed something more, than what is contemplated under a scheme. As for instance, if the scheme contemplates an interest of Y% and the certificate issued records the interest of Y+2% as payable on maturity, the certificate holder cannot be deprived of the interest as a whole, on account of the above irregularity.
He can only be deprived of 2%, i.e., the excess amount, beyond the permissible interest, contemplated under the scheme. A certificate holder, would have an absolute right, in the above illustration, to claim interest at Y%, i.e., in consonance with the scheme, despite rule 17. Ordinarily, when the authorities have issued a certificate which they could not have issued, they cannot be allowed to enrich themselves, by retaining the deposit made. This may well be possible if the transaction is a sham or wholly illegal. Not so, if the irregularity is curable. In such circumstances, the postal authorities should devise means to regularize the irregularity, if possible.

10. It is not possible for us to deny relief to the appellant, based on the judgments rendered by this Court in Raja Prameeelamma case (supra) and Arulmighu Dhandayadhapaniswamy Thirukoil case (supra), in view of the fact that, the matter was never examined in the perspective determined by us hereinabove. In neither of the two judgments, the amendment of the NSC was sought. The instant proposition of law was also not projected on behalf of the certificate holders, in the manner expressed above.

11. There was seriously no difficulty at all in the facts and circumstances of the present case, to regularize the defect pointed out, because M/s. Bhagwati Vanaspati Traders, is admittedly the sole proprietorship concern of B.K. Garg. The postal authorities should have solicited the change of the name in the NSC, through a representation by B.K. Garg himself. On receipt of such a representation, the alleged irregularity would have been cured, and the beneficiary of the deposit, would have legitimately reaped the fruits thereof. Rather than adopting the above simple course, the postal authorities chose to strictly and rigidly interpret the terms of the scheme.
This resulted in the denial of the legitimate claims of the sole proprietor of the appellant concern, i.e., B.K. Garg, of the investment made by him. In the above view of the matter, we consider it just and appropriate, in exercise of our jurisdiction under Article 142 of the Constitution of India, to direct the Senior Superintendent of Post Offices, Meerut, to correct the NSC issued in the name of M/s. Bhagwati Vanaspati Traders, by substituting the appellant’s name, with that of B.K. Garg.

12. The irregularity having been cured, we hope that B.K. Garg will now be released all the payments due to him, in terms of the order passed by the District Forum. The respondent is accordingly directed to pay to B.K. Garg, the maturity amount of Rs.10,075/- with 12% interest, from the date of maturity, till the date of payment. He would be entitled to Rs.5,000/- towards compensation, as was awarded to him by the District Forum. In addition, we consider it just and appropriate to award him litigation costs of Rs.10,000/-. The entire amount aforementioned, should be released to B.K. Garg, the sole proprietor of M/s. Bhagwati Vanaspati Traders, within one month from the date of receipt of a certified copy of this judgment.

13. The instant appeal is allowed in the aforesaid terms.

………………..J.
(Jagdish Singh Khehar)

………………..J.
(C. Nagappan)

New Delhi;
October 10, 2014.

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 4854/2009
M/S.BHAGWATI VANASPATI TRADERS …Appellant(s)
VERSUS
SR.SUPERIN.OF POST OFFICE,MEERUT ….Respondent(s)

[HEARD BY HON’BLE JAGDISH SINGH KHEHAR AND HON’BLE C.NAGAPPAN, JJ.]

Date : 10/10/2014 This appeal was called on for Judgment today.

For Appellant(s) Mr. V. K. Monga,Adv.(Not present)

For Respondent(s) Mr. Kamal Mohan Gupta,Adv.(Not present)

Hon’ble Mr. Justice Jagdish Singh Khehar pronounced the judgment of the Bench comprising his Lordship and Hon’ble Mr. Justice C. Nagappan.

For the reasons recorded in the Reportable judgment, which is placed on the file, the appeal is allowed.

Parveen Kr. Chawla
Court Master

Phoolan Wati Arora
Assistant Registrar

The post M/s. Bhagwati Vanaspati Traders Vs. Senior Superintendent of Post Offices, Meerut appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.400 OF 2012
National Legal Services Authority …Petitioner
Versus
Union of India and others …Respondents
WITH
WRIT PETITION (CIVIL) NO.604 OF 2013

J U D G M E N T

K.S. Radhakrishnan, J.

1. Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

2. We are, in this case, concerned with the grievances of the members of Transgender Community (for short ‘TG community’) who seek a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.

3. The National Legal Services Authority, constituted under the Legal Services Authority Act, 1997, to provide free legal services to the weaker and other marginalized sections of the society, has come forward to advocate their cause, by filing Writ Petition No. 400 of 2012. Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association, has also preferred Writ Petition No. 604 of 2013, seeking similar reliefs in respect of Kinnar community, a TG community.

4. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got impleaded so as to effectively put across the cause of the members of the transgender community and Tripathy’s life experiences also for recognition of their identity as a third gender, over and above male and female. Tripathy says that non-recognition of the identity of Hijras, a TG community, as a third gender, denies them the right of equality before the law and equal protection of law guaranteed under Article 14 of the Constitution and violates the rights guaranteed to them under Article 21 of the Constitution of India.

5. Shri Raju Ramachandran, learned senior counsel appearing for the petitioner – the National Legal Services Authority, highlighted the traumatic experiences faced by the members of the TG community and submitted that every person of that community has a legal right to decide their sex orientation and to espouse and determine their identity. Learned senior counsel has submitted that since the TGs are neither treated as male or female, nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. TGs are deprived of social and cultural participation and hence restricted access to education, health care and public places which deprives them of the Constitutional guarantee of equality before law and equal protection of laws. Further, it was also pointed out that the community also faces discrimination to contest election, right to vote, employment, to get licences etc. and, in effect, treated as an outcast and untouchable. Learned senior counsel also submitted that the State cannot discriminate them on the ground of gender, violating Articles 14 to 16 and 21 of the Constitution of India.

6. Shri Anand Grover, learned senior counsel appearing for the Intervener, traced the historical background of the third gender identity in India and the position accorded to them in the Hindu Mythology, Vedic and Puranic literatures, and the prominent role played by them in the royal courts of the Islamic world etc. Reference was also made to the repealed Criminal Tribes Act, 1871 and explained the inhuman manner by which they were treated at the time of the British Colonial rule. Learned senior counsel also submitted that various International Forums and U.N. Bodies have recognized their gender identity and referred to the Yogyakarta Principles and pointed out that those principles have been recognized by various countries around the world. Reference was also made to few legislations giving recognition to the trans-sexual persons in other countries. Learned senior counsel also submitted that non-recognition of gender identity of the transgender community violates the fundamental rights guaranteed to them, who are citizens of this country.

7. Shri T. Srinivasa Murthy, learned counsel appearing in I.A. No. 2 of 2013, submitted that transgender persons have to be declared as a socially and educationally backward classes of citizens and must be accorded all benefits available to that class of persons, which are being extended to male and female genders. Learned counsel also submitted that the right to choose one’s gender identity is integral to the right to lead a life with dignity, which is undoubtedly guaranteed by Article 21 of the Constitution of India. Learned counsel, therefore, submitted that, subject to such rules/regulations/protocols, transgender persons may be afforded the right of choice to determine whether to opt for male, female or transgender classification.

8. Shri Sanjeev Bhatnagar, learned counsel appearing for the petitioner in Writ Petition No.604 of 2013, highlighted the cause of the Kinnar community and submitted that they are the most deprived group of transgenders and calls for constitutional as well as legal protection for their identity and for other socio-economic benefits, which are otherwise extended to the members of the male and female genders in the community.

9. Shri Rakesh K. Khanna, learned Additional Solicitor General, appearing for the Union of India, submitted that the problems highlighted by the transgender community is a sensitive human issue, which calls for serious attention. Learned ASG pointed out that, under the aegis of the Ministry of Social Justice and Empowerment (for short “MOSJE”), a Committee, called “Expert Committee on Issues relating to Transgender”, has been constituted to conduct an in-depth study of the problems relating to transgender persons to make appropriate recommendations to MOSJE. Shri Khanna also submitted that due representation would also be given to the applicants, appeared before this Court in the Committee, so that their views also could be heard.

10. We also heard learned counsel appearing for various States and Union Territories who have explained the steps they have taken to improve the conditions and status of the members of TG community in their respective States and Union Territories. Laxmi Narayan Tripathy, a Hijra, through a petition supported by an affidavit, highlighted the trauma undergone by Tripathy from Tripathy’s birth. Rather than explaining the same by us, it would be appropriate to quote in Tripathy’s own words:

“That the Applicant has born as a male. Growing up as a child, she felt different from the boys of her age and was feminine in her ways.

On account of her femininity, from an early age, she faced repeated sexual harassment, molestation and sexual abuse, both within and outside the family. Due to her being different, she was isolated and had no one to talk to or express her feelings while she was coming to terms with her identity. She was constantly abused by everyone as a ‘chakka’ and ‘hijra’. Though she felt that there was no place for her in society, she did not succumb to the prejudice. She started to dress and appear in public in women’s clothing in her late teens but she did not identify as a woman. Later, she joined the Hijra community in Mumbai as she identified with the other hijras and for the first time in her life, she felt at home.

That being a hijra, the Applicant has faced serious discrimination throughout her life because of her gender identity. It has been clear to the Applicant that the complete non-recognition of the identity of hijras/transgender persons by the State has resulted in the violation of most of the fundamental rights guaranteed to them under the Constitution of India…” Siddarth Narrain, eunuch, highlights Narrain’s feeling, as follows:

“Ever since I can remember, I have always identified myself as a woman. I lived in Namakkal, a small town in Tamil Nadu. When I was in the 10th standard I realized that the only way for me to be comfortable was to join the hijra community. It was then that my family found out that I frequently met hijras who lived in the city.

One day, when my father was away, my brother, encouraged by my mother, started beating me with a cricket bat. I locked myself in a room to escape from the beatings. My mother and brother then tried to break into the room to beat me up further. Some of my relatives intervened and brought me out of the room. I related my ordeal to an uncle of mine who gave me Rs.50 and asked me to go home. Instead, I took the money and went to live with a group of hijras in Erode.” Sachin, a TG, expressed his experiences as follows:

“My name is Sachin and I am 23 years old. As a child I always enjoyed putting make-up like ‘vibhuti’ or ‘kum kum’ and my parents always saw me as a girl. I am male but I only have female feelings.

I used to help my mother in all the housework like cooking, washing and cleaning. Over the years, I started assuming more of the domestic responsibilities at home. The neighbours starting teasing me. They would call out to me and ask: ‘Why don’t you go out and work like a man?’ or ‘Why are you staying at home like a girl?’ But I liked being a girl. I felt shy about going out and working. Relatives would also mock and scold me on this score. Every day I would go out of the house to bring water. And as I walked back with the water I would always be teased. I felt very ashamed. I even felt suicidal.

How could I live like that? But my parents never protested. They were helpless.” We have been told and informed of similar life experiences faced by various others who belong to the TG community.

11. Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex. TG may also takes in persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs who, in this writ petition, describe themselves as “third gender” and they do not identify as either male or female. Hijras are not men by virtue of anatomy appearance and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation.

Since Hijras do not have reproduction capacities as either men or women, they are neither men nor women and claim to be an institutional “third gender”. Among Hijras, there are emasculated (castrated, nirvana) men, non- emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites). TG also includes persons who intend to undergo Sex Re- Assignment Surgery (SRS) or have undergone SRS to align their biological sex with their gender identity in order to become male or female. They are generally called transsexual persons. Further, there are persons who like to cross-dress in clothing of opposite gender, i.e transvestites.

Resultantly, the term “transgender”, in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female.

HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:

12. TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts. The Concept of tritiya prakrti or napunsaka has also been an integral part of vedic and puranic literatures. The word ‘napunsaka’ has been used to denote absence of procreative capability.

13. Lord Rama, in the epic Ramayana, was leaving for the forest upon being banished from the kingdom for 14 years, turns around to his followers and asks all the ‘men and women’ to return to the city. Among his followers, the hijras alone do not feel bound by this direction and decide to stay with him. Impressed with their devotion, Rama sanctions them the power to confer blessings on people on auspicious occasions like childbirth and marriage, and also at inaugural functions which, it is believed set the stage for the custom of badhai in which hijras sing, dance and confer blessings.

14. Aravan, the son of Arjuna and Nagakanya in Mahabharata, offers to be sacrificed to Goddess Kali to ensure the victory of the Pandavas in the Kurukshetra war, the only condition that he made was to spend the last night of his life in matrimony. Since no woman was willing to marry one who was doomed to be killed, Krishna assumes the form of a beautiful woman called Mohini and marries him. The Hijras of Tamil Nadu consider Aravan their progenitor and call themselves Aravanis.

15. Jain Texts also make a detailed reference to TG which mentions the concept of ‘psychological sex’. Hijras also played a prominent role in the royal courts of the Islamic world, especially in the Ottaman empires and the Mughal rule in the Medieval India. A detailed analysis of the historical background of the same finds a place in the book of Gayatri Reddy, “With Respect to Sex: Negotiating Hijra Identity in South India” – Yoda Press (2006).

16. We notice that even though historically, Hijras/transgender persons had played a prominent role, with the onset of colonial rule from the 18th century onwards, the situation had changed drastically. During the British rule, a legislation was enacted to supervise the deeds of Hijras/TG community, called the Criminal Tribes Act, 1871, which deemed the entire community of Hijras persons as innately ‘criminal’ and ‘addicted to the systematic commission of non-bailable offences’. The Act provided for the registration, surveillance and control of certain criminal tribes and eunuchs and had penalized eunuchs, who were registered, and appeared to be dressed or ornamented like a woman, in a public street or place, as well as those who danced or played music in a public place. Such persons also could be arrested without warrant and sentenced to imprisonment up to two years or fine or both. Under the Act, the local government had to register the names and residence of all eunuchs residing in that area as well as of their properties, who were reasonably suspected of kidnapping or castrating children, or of committing offences under Section 377 of the IPC, or of abetting the commission of any of the said offences. Under the Act, the act of keeping a boy under 16 years in the charge of a registered eunuch was made an offence punishable with imprisonment up to two years or fine and the Act also denuded the registered eunuchs of their civil rights by prohibiting them from acting as guardians to minors, from making a gift deed or a will, or from adopting a son. Act has, however, been repealed in August 1949.

17. Section 377 of the IPC found a place in the Indian Penal Code, 1860, prior to the enactment of Criminal Tribles Act that criminalized all penile- non-vaginal sexual acts between persons, including anal sex and oral sex, at a time when transgender persons were also typically associated with the prescribed sexual practices. Reference may be made to the judgment of the Allahabad High Court in Queen Empress v. Khairati (1884) ILR 6 All 204, wherein a transgender person was arrested and prosecuted under Section 377 on the suspicion that he was a ‘habitual sodomite’ and was later acquitted on appeal. In that case, while acquitting him, the Sessions Judge stated as follows:

“This case relates to a person named Khairati, over whom the police seem to have exercised some sort of supervision, whether strictly regular or not, as a eunuch. The man is not a eunuch in the literal sense, but he was called for by the police when on a visit to his village, and was found singing dressed as a woman among the women of a certain family. Having been subjected to examination by the Civil Surgeon (and a subordinate medical man), he is shown to have the characteristic mark of a habitual catamite – the distortion of the orifice of the anus into the shape of a trumpet and also to be affected with syphilis in the same region in a manner which distinctly points to unnatural intercourse within the last few months.”

18. Even though, he was acquitted on appeal, this case would demonstrate that Section 377, though associated with specific sexual acts, highlighted certain identities, including Hijras and was used as an instrument of harassment and physical abuse against Hijras and transgender persons. A Division Bench of this Court in Suresh Kumar Koushal and another v. Naz Foundation and others [(2014) 1 SCC 1] has already spoken on the constitutionality of Section 377 IPC and, hence, we express no opinion on it since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.

GENDER IDENTITY AND SEXUAL ORIENTATION

19. Gender identity is one of the most-fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person. A person’s sex is usually assigned at birth, but a relatively small group of persons may born with bodies which incorporate both or certain aspects of both male and female physiology. At times, genital anatomy problems may arise in certain persons, their innate perception of themselves, is not in conformity with the sex assigned to them at birth and may include pre and post-operative transsexual persons and also persons who do not choose to undergo or do not have access to operation and also include persons who cannot undergo successful operation.

Countries, all over the world, including India, are grappled with the question of attribution of gender to persons who believe that they belong to the opposite sex. Few persons undertake surgical and other procedures to alter their bodies and physical appearance to acquire gender characteristics of the sex which conform to their perception of gender, leading to legal and social complications since official record of their gender at birth is found to be at variance with the assumed gender identity. Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.

20. Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homo-sexuals, bysexuals, heterosexuals, asexual etc. Gender identity and sexual orientation, as already indicated, are different concepts. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.

UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES – ON GENDER IDENTITY AND SEXUAL ORIENTATION

21. United Nations has been instrumental in advocating the protection and promotion of rights of sexual minorities, including transgender persons.

Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every human being has the inherent right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right. Everyone shall have a right to recognition, everywhere as a person before the law. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that everyone has the right to protection of law against such interference or attacks. International Commission of Jurists and the International Service for Human Rights on behalf of a coalition of human rights organizations, took a project to develop a set of international legal principles on the application of international law to human rights violations based on sexual orientation and sexual identity to bring greater clarity and coherence to State’s human rights obligations. A distinguished group of human rights experts has drafted, developed, discussed and reformed the principles in a meeting held at Gadjah Mada University in Yogyakarta, Indonesia from 6 to 9 November, 2006, which is unanimously adopted the Yogyakarta Principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. Yogyakarta Principles address a broad range of human rights standards and their application to issues of sexual orientation gender identity. Reference to few Yogyakarta Principles would be useful.

YOGYAKARTA PRINCIPLES:

22. Principle 1 which deals with the right to the universal enjoyment of human rights, reads as follows :- “1. THE RIGHT TO THE UNIVERSAL ENJOYMENT OF HUMAN RIGHTS All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.

States shall:

A. Embody the principles of the universality, interrelatedness, interdependence and indivisibility of all human rights in their national constitutions or other appropriate legislation and ensure the practical realisation of the universal enjoyment of all human rights;

B. Amend any legislation, including criminal law, to ensure its consistency with the universal enjoyment of all human rights;

C. Undertake programmes of education and awareness to promote and enhance the full enjoyment of all human rights by all persons, irrespective of sexual orientation or gender identity;

D. Integrate within State policy and decision-making a pluralistic approach that recognises and affirms the interrelatedness and indivisibility of all aspects of human identity including sexual orientation and gender identity.

2. THE RIGHTS TO EQUALITY AND NON-DISCRIMINATION Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination.

Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms.

Discrimination based on sexual orientation or gender identity may be, and commonly is, compounded by discrimination on other grounds including gender, race, age, religion, disability, health and economic status.

States shall:

A. Embody the principles of equality and non-discrimination on the basis of sexual orientation and gender identity in their national constitutions or other appropriate legislation, if not yet incorporated therein, including by means of amendment and interpretation, and ensure the effective realisation of these principles;

B. Repeal criminal and other legal provisions that prohibit or are, in effect, employed to prohibit consensual sexual activity among people of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different- sex sexual activity;

C. Adopt appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity;

D. Take appropriate measures to secure adequate advancement of persons of diverse sexual orientations and gender identities as may be necessary to ensure such groups or individuals equal enjoyment or exercise of human rights. Such measures shall not be deemed to be discriminatory;

E. In all their responses to discrimination on the basis of sexual orientation or gender identity, take account of the manner in which such discrimination may intersect with other forms of discrimination;

F. Take all appropriate action, including programmes of education and training, with a view to achieving the elimination of prejudicial or discriminatory attitudes or behaviours which are related to the idea of the inferiority or the superiority of any sexual orientation or gender identity or gender expression.

3. THE RIGHT TO RECOGNITION BEFORE THE LAW Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self- defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self- determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity. No one shall be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity.

States shall:

A. Ensure that all persons are accorded legal capacity in civil matters, without discrimination on the basis of sexual orientation or gender identity, and the opportunity to exercise that capacity, including equal rights to conclude contracts, and to administer, own, acquire (including through inheritance), manage, enjoy and dispose of property;

B. Take all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity;

C. Take all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s gender/sex — including birth certificates, passports, electoral records and other documents — reflect the person’s profound self-defined gender identity;

D. Ensure that such procedures are efficient, fair and non- discriminatory, and respect the dignity and privacy of the person concerned;

E. Ensure that changes to identity documents will be recognised in all contexts where the identification or disaggregation of persons by gender is required by law or policy;

F. Undertake targeted programmes to provide social support for all persons experiencing gender transitioning or reassignment.

4. THE RIGHT TO LIFE Everyone has the right to life. No one shall be arbitrarily deprived of life, including by reference to considerations of sexual orientation or gender identity. The death penalty shall not be imposed on any person on the basis of consensual sexual activity among persons who are over the age of consent or on the basis of sexual orientation or gender identity.

States shall:

A. Repeal all forms of crime that have the purpose or effect of prohibiting consensual sexual activity among persons of the same sex who are over the age of consent and, until such provisions are repealed, never impose the death penalty on any person convicted under them;

B. Remit sentences of death and release all those currently awaiting execution for crimes relating to consensual sexual activity among persons who are over the age of consent;

C. Cease any State-sponsored or State-condoned attacks on the lives of persons based on sexual orientation or gender identity, and ensure that all such attacks, whether by government officials or by any individual or group, are vigorously investigated, and that, where appropriate evidence is found, those responsible are prosecuted, tried and duly punished.

6. THE RIGHT TO PRIVACY Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation. The right to privacy ordinarily includes the choice to disclose or not to disclose information relating to one’s sexual orientation or gender identity, as well as decisions and choices regarding both one’s own body and consensual sexual and other relations with others.

States shall:

A. Take all necessary legislative, administrative and other measures to ensure the right of each person, regardless of sexual orientation or gender identity, to enjoy the private sphere, intimate decisions, and human relations, including consensual sexual activity among persons who are over the age of consent, without arbitrary interference;

B. Repeal all laws that criminalise consensual sexual activity among persons of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different- sex sexual activity;

C. Ensure that criminal and other legal provisions of general application are not applied to de facto criminalise consensual sexual activity among persons of the same sex who are over the age of consent;

D. Repeal any law that prohibits or criminalises the expression of gender identity, including through dress, speech or mannerisms, or that denies to individuals the opportunity to change their bodies as a means of expressing their gender identity;

E. Release all those held on remand or on the basis of a criminal conviction, if their detention is related to consensual sexual activity among persons who are over the age of consent, or is related to gender identity;

F. Ensure the right of all persons ordinarily to choose when, to whom and how to disclose information pertaining to their sexual orientation or gender identity, and protect all persons from arbitrary or unwanted disclosure, or threat of disclosure of such information by others 9. THE RIGHT TO TREATMENT WITH HUMANITY WHILE IN DETENTION
Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Sexual orientation and gender identity are integral to each person’s dignity.

States shall:

A. Ensure that placement in detention avoids further marginalising persons on the basis of sexual orientation or gender identity or subjecting them to risk of violence, ill-treatment or physical, mental or sexual abuse;

B. Provide adequate access to medical care and counselling appropriate to the needs of those in custody, recognising any particular needs of persons on the basis of their sexual orientation or gender identity, including with regard to reproductive health, access to HIV/AIDS information and therapy and access to hormonal or other therapy as well as to gender-reassignment treatments where desired;

C. Ensure, to the extent possible, that all prisoners participate in decisions regarding the place of detention appropriate to their sexual orientation and gender identity;

D. Put protective measures in place for all prisoners vulnerable to violence or abuse on the basis of their sexual orientation, gender identity or gender expression and ensure, so far as is reasonably practicable, that such protective measures involve no greater restriction of their rights than is experienced by the general prison population;

E. Ensure that conjugal visits, where permitted, are granted on an equal basis to all prisoners and detainees, regardless of the gender of their partner;

F. Provide for the independent monitoring of detention facilities by the State as well as by non-governmental organisations including organisations working in the spheres of sexual orientation and gender identity;

G. Undertake programmes of training and awareness-raising for prison personnel and all other officials in the public and private sector who are engaged in detention facilities, regarding international human rights standards and principles of equality and non- discrimination, including in relation to sexual orientation and gender identity.

18. PROTECTION FROM MEDICAL ABUSES No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity.

Notwithstanding any classifications to the contrary, a person’s sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed.

States shall:

A. Take all necessary legislative, administrative and other measures to ensure full protection against harmful medical practices based on sexual orientation or gender identity, including on the basis of stereotypes, whether derived from culture or otherwise, regarding conduct, physical appearance or perceived gender norms;

B. Take all necessary legislative, administrative and other measures to ensure that no child’s body is irreversibly altered by medical procedures in an attempt to impose a gender identity without the full, free and informed consent of the child in accordance with the age and maturity of the child and guided by the principle that in all actions concerning children, the best interests of the child shall be a primary consideration;

C. Establish child protection mechanisms whereby no child is at risk of, or subjected to, medical abuse;

D. Ensure protection of persons of diverse sexual orientations and gender identities against unethical or involuntary medical procedures or research, including in relation to vaccines, treatments or microbicides for HIV/AIDS or other diseases;

E. Review and amend any health funding provisions or programmes, including those of a development-assistance nature, which may promote, facilitate or in any other way render possible such abuses;

F. Ensure that any medical or psychological treatment or counselling does not, explicitly or implicitly, treat sexual orientation and gender identity as medical conditions to be treated, cured or suppressed.

19. THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION Everyone has the right to freedom of opinion and expression, regardless of sexual orientation or gender identity. This includes the expression of identity or personhood through speech, deportment, dress, bodily characteristics, choice of name, or any other means, as well as the freedom to seek, receive and impart information and ideas of all kinds, including with regard to human rights, sexual orientation and gender identity, through any medium and regardless of frontiers.

States shall:

A. Take all necessary legislative, administrative and other measures to ensure full enjoyment of freedom of opinion and expression, while respecting the rights and freedoms of others, without discrimination on the basis of sexual orientation or gender identity, including the receipt and imparting of information and ideas concerning sexual orientation and gender identity, as well as related advocacy for legal rights, publication of materials, broadcasting, organisation of or participation in conferences, and dissemination of and access to safer-sex information;

B. Ensure that the outputs and the organisation of media that is State-regulated is pluralistic and non-discriminatory in respect of issues of sexual orientation and gender identity and that the personnel recruitment and promotion policies of such organisations are non-discriminatory on the basis of sexual orientation or gender identity;

C. Take all necessary legislative, administrative and other measures to ensure the full enjoyment of the right to express identity or personhood, including through speech, deportment, dress, bodily characteristics, choice of name or any other means;

D. Ensure that notions of public order, public morality, public health and public security are not employed to restrict, in a discriminatory manner, any exercise of freedom of opinion and expression that affirms diverse sexual orientations or gender identities;

E. Ensure that the exercise of freedom of opinion and expression does not violate the rights and freedoms of persons of diverse sexual orientations and gender identities;

F. Ensure that all persons, regardless of sexual orientation or gender identity, enjoy equal access to information and ideas, as well as to participation in public debate.”

23. UN bodies, Regional Human Rights Bodies, National Courts, Government Commissions and the Commissions for Human Rights, Council of Europe, etc.

have endorsed the Yogyakarta Principles and have considered them as an important tool for identifying the obligations of States to respect, protect and fulfill the human rights of all persons, regardless of their gender identity. United Nations Committee on Economic, Social and Cultural Rights in its Report of 2009 speaks of gender orientation and gender identity as follows:- “Sexual orientation and gender identity ‘Other status’ as recognized in article 2, paragraph 2, includes sexual orientation. States parties should ensure that a person’s sexual orientation is not a barrier to realizing Covenant rights, for example, in accessing survivor’s pension rights. In addition, gender identity is recognized as among the prohibited grounds of discrimination, for example, persons who are transgender, transsexual or intersex, often face serious human rights violations, such as harassment in schools or in the workplace.”

24. In this respect, reference may also be made to the General Comment No.2 of the Committee on Torture and Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2008 and also the General Comment No.20 of the Committee on Elimination of Discrimination against Woman, responsible for the implementation of the Convention on the Elimination of All Forms of Discrimination against Woman, 1979 and 2010 report.

SRS and Foreign Judgments

25. Various countries have given recognition to the gender identity of such persons, mostly, in cases where transsexual persons started asserting their rights after undergoing SRS of their re-assigned sex. In Corbett v. Corbett (1970) 2 All ER 33, the Court in England was concerned with the gender of a male to female transsexual in the context of the validity of a marriage. Ormrod, J. in that case took the view that the law should adopt the chromosomal, gonadal and genital tests and if all three are congruent, that should determine a person’s sex for the purpose of marriage. Learned Judge expressed the view that any operative intervention should be ignored and the biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means. Later, in R v.

Tan (1983) QB 1053, 1063-1064, the Court of Appeal applied Corbett approach in the context of criminal law. The Court upheld convictions which were imposed on Gloria Greaves, a post-operative male to female transsexual, still being in law, a man.

26. Corbett principle was not found favour by various other countries, like New Zealand, Australia etc. and also attracted much criticism, from the medical profession. It was felt that the application of the Corbett approach would lead to a substantial different outcome in cases of a post operative inter-sexual person and a post operative transsexual person. In New Zealand in Attorney-General v. Otahuhu Family Court (1995) 1 NZLR 603, Justice Ellis noted that once a transsexual person has undergone surgery, he or she is no longer able to operate in his or her original sex. It was held that there is no social advantage in the law for not recognizing the validity of the marriage of a transsexual in the sex of reassignment. The Court held that an adequate test is whether the person in question has undergone surgical and medical procedures that have effectively given the person the physical conformation of a person of a specified sex. In Re Kevin (Validity of Marriage of Transsexual) (2001) Fam CA 1074, in an Australian case, Chisholm J., held that there is no ‘formulaic solution’ to determine the sex of an individual for the purpose of the law of marriage.

It was held that all relevant matters need to be considered, including the person’s life experiences and self-perception. Full Court of the Federal Family Court in the year 2003 approved the above-mentioned judgment holding that in the relevant Commonwealth marriage statute the words ‘man’ and ‘woman’ should be given their ordinary, everyday contemporary meaning and that the word ‘man’ includes a post operative female to male transsexual person. The Full Court also held that there was a biological basis for transsexualism and that there was no reason to exclude the psyche as one of the relevant factors in determining sex and gender. The judgment Attorney- General for the Commonwealth & “Kevin and Jennifer” & Human Rights and Equal Opportunity Commission is reported in (2003) Fam CA 94.

27. Lockhart, J. in Secretary, Department of Social Security v. “SRA”, [1993] FCA 573; (1993) 43 FCR 299 and Mathews, J. in R v. Harris & McGuiness (1988) 17 NSWLR 158, made an exhaustive review of the various decisions with regard to the question of recognition to be accorded by Courts to the gender of a transsexual person who had undertaken a surgical procedure. The Courts generally in New Zealand held that the decision in Corbett v. Corbett (supra) and R v. Tan (supra) which applied a purely biological test, should not be followed. In fact, Lockhart. J. in SRA observed that the development in surgical and medical techniques in the field of sexual reassignment, together with indications of changing social attitudes towards transsexuals, would indicate that generally they should not be regarded merely as a matter of chromosomes, which is purely a psychological question, one of self-perception, and partly a social question, how society perceives the individual.

28. A.B. v. Western Australia (2011) HCA 42 was a case concerned with the Gender Reassignment Act, 2000. In that Act, a person who had undergone a reassignment procedure could apply to Gender Reassignment Board for the issue of a recognition certificate. Under Section 15 of that Act, before issuing the certificate, the Board had to be satisfied, inter alia, that the applicant believed his or her true gender was the person’s reassigned gender and had adopted the lifestyle and gender characteristics of that gender. Majority of Judges agreed with Lockhart, J. in SRA that gender should not be regarded merely as a matter of chromosomes, but partly a psychological question, one of self-perception, and partly a social question, how society perceives the individual.

29. The House of Lords in Bellinger v. Bellinger [2003] UKHL 21; (2003) 2 All ER 593 was dealing with the question of a transsexual. In that case, Mrs. Bellinger was born on 7th September, 1946. At birth, she was correctly classified and registered as male. However, she felt more inclined to be a female.

Despite her inclinations, and under some pressure, in 1967 she married a woman and at that time she was 21 years old. Marriage broke down and parties separated in 1971 and got divorce in the year 1975. Mrs. Bellinger dressed and lived like a woman and when she married Mr. Bellinger, he was fully aware of her background and throughout had been supportive to her.

Mr. and Mrs. Bellinger since marriage lived happily as husband and wife and presented themselves in that fashion to the outside world. Mrs.

Bellinger’s primary claim was for a declaration under Section 55 of the Family Law Act, 1986 that her marriage to Mr. Bellinger in 1981 was “at its inception valid marriage”. The House of Lords rejected the claim and dismissed the appeal. Certainly, the “psychological factor” has not been given much prominence in determination of the claim of Mrs. Bellinger.

30. The High Court of Kuala Lumpur in Re JG, JG v. Pengarah Jabatan Pendaftaran Negara (2006) 1 MLJ 90, was considering the question as to whether an application to amend or correct gender status stated in National Registration Identity Card could be allowed after a person has undergone SRS. It was a case where the plaintiff was born as a male, but felt more inclined to be a woman. In 1996 at Hospital Siroros she underwent a gender reassignment and got the surgery done for changing the sex from male to female and then she lived like a woman. She applied to authorities to change her name and also for a declaration of her gender as female, but her request was not favourably considered, but still treated as a male. She sought a declaration from the Court that she be declared as a female and that the Registration Department be directed to change the last digit of her identity card to a digit that reflects a female gender. The Malaysian Court basically applied the principle laid down in Corbett (supra), however, both the prayers sought for were granted, after noticing that the medical men have spoken that the plaintiff is a female and they have considered the sex change of the plaintiff as well as her “psychological aspect”. The Court noticed that she feels like a woman, lives like one, behaves as one, has her physical body attuned to one, and most important of all, her “psychological thinking” is that of a woman.

31. The Court of Appeal, New South Wales was called upon to decide the question whether the Registrar of Births, Deaths and Marriages has the power under the Births, Deaths and Marriages Act, 1995 to register a change of sex of a person and the sex recorded on the register to “non-specific” or “non-specified”. The appeal was allowed and the matter was remitted back to the Tribunal for a fresh consideration in accordance with law, after laying down the law on the subject. The judgment is reported as Norrie v. NSW Registrar of Births, Deaths and Marriages (2013) NSWCA 145.

While disposing of the appeal, the Court held as follows:- “The consequence is that the Appeal Panel (and the Tribunal and the Registrar) were in error in construing the power in S.32DC(1) as limiting the Registrar to registering a person’s change of sex as only male or female. An error in the construction of the statutory provision granting the power to register a person’s change of sex is an error on a question of law. Collector of Customs v. Pozzolanic Enterprises Pty. Ltd. [1993] FCA 322; (1993) 43 FCR 280 at 287. This is so notwithstanding that the determination of the common understanding of a general word used in the statutory provision is a question of fact. The Appeal Panel (and the Tribunal and the Registrar) erred in determining that the current ordinary meaning of the word “sex” is limited to the character of being either male or female. That involved an error on a question of fact. But the Appeal Panel’s error in arriving at the common understanding of the word “sex” was associated with its error in construction of the effect of the statutory provision of S.32DC (and also of S.32DA), and accordingly is of law: Hope v. Bathurst City Council [1980] HCA 16, [1980] HCA 16; (1980) 144 CLR 1 at 10.”

32. In Christine Goodwin v. United Kingdom (Application No.28957/95 – Judgment dated 11th July, 2002), the European Court of Human Rights examined an application alleging violation of Articles 8, 12, 13 and 14 of the Convention for Protection of Human Rights and Fundamental Freedoms, 1997 in respect of the legal status of transsexuals in UK and particularly their treatment in the sphere of employment, social security, pensions and marriage. Applicant in that case had a tendency to dress as a woman from early childhood and underwent aversion therapy in 1963-64. In the mid- 1960s she was diagnosed as a transsexual. Though she married a woman and they had four children, her inclination was that her “brain sex” did not fit her body. From that time until 1984 she dressed as a man for work but as a woman in her free time. In January, 1985, the applicant began treatment at the Gender Identity Clinic. In October, 1986, she underwent surgery to shorten her vocal chords. In August, 1987, she was accepted on the waiting list for gender re-assignment surgery and later underwent that surgery at a National Health Service hospital. The applicant later divorced her former wife. She claimed between 1990 and 1992 she was sexually harassed by colleagues at work, followed by other human rights violations. The Court after referring to various provisions and Conventions held as follows:- “Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individuals, including the right to establish details of their identity as individual human beings (see, inter alia, Pretty v. the United Kingdom no.2346/02, judgment of 29 April 2002, 62, and Mikulic v. Croatia, no.53176/99, judgment of 7 February 2002, 53, both to be published in ECHR 2002..).

In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post- operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.”

33. The European Court of Human Rights in the case of Van Kuck v. Germany (Application No.35968/97 – Judgment dated 12.9.2003) dealt with the application alleging that German Court’s decisions refusing the applicant’s claim for reimbursement of gender reassignment measures and the related proceedings were in breach of her rights to a fair trial and of her right to respect for her private life and that they amounted to discrimination on the ground of her particular “psychological situation”. Reliance was placed on Articles 6, 8, 13 and 14 of the Convention for Protection of Human Rights and Fundamental Freedoms, 1997. The Court held that the concept of “private life” covers the physical and psychological integrity of a person, which can sometimes embrace aspects of an individual’s physical and social identity. For example, gender identifications, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. The Court also held that the notion of personal identity is an important principle underlying the interpretation of various guaranteed rights and the very essence of the Convention being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and to physical and moral security.

34. Judgments referred to above are mainly related to transsexuals, who, whilst belonging physically to one sex, feel convinced that they belong to the other, seek to achieve a more integrated unambiguous identity by undergoing medical and surgical operations to adapt their physical characteristic to their psychological nature. When we examine the rights of transsexual persons, who have undergone SRS, the test to be applied is not the “Biological test”, but the “Psychological test”, because psychological factor and thinking of transsexual has to be given primacy than binary notion of gender of that person. Seldom people realize the discomfort, distress and psychological trauma, they undergo and many of them undergo “Gender Dysphoria’ which may lead to mental disorder.

Discrimination faced by this group in our society, is rather unimaginable and their rights have to be protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role. Rights of transgenders, pure and simple, like Hijras, eunuchs, etc. have also to be examined, so also their right to remain as a third gender as well as their physical and psychological integrity. Before addressing those aspects further, we may also refer to few legislations enacted in other countries recognizing their rights.

LEGISLATIONS IN OTHER COUNTRIES ON TGs

35. We notice, following the trend, in the international human rights law, many countries have enacted laws for recognizing rights of transsexual persons, who have undergone either partial/complete SRS, including United Kingdom, Netherlands, Germany, Australia, Canada, Argentina, etc. United Kingdom has passed the General Recommendation Act, 2004, following the judgment in Christine Goodwin (supra) passed by the European Courts of Human Rights. The Act is all encompassing as not only does it provide legal recognition to the acquired gender of a person, but it also lays down provisions highlighting the consequences of the newly acquired gender status on their legal rights and entitlements in various aspects such as marriage, parentage, succession, social security and pensions etc. One of the notable features of the Act is that it is not necessary that a person needs to have undergone or in the process of undergoing a SRS to apply under the Act. Reference in this connection may be made to the Equality Act, 2010 (UK) which has consolidated, repealed and replaced around nine different anti-discrimination legislations including the Sex Discrimination Act, 1986. The Act defines certain characteristics to be “protected characteristics” and no one shall be discriminated or treated less favourably on grounds that the person possesses one or more of the “protected characteristics”. The Act also imposes duties on Public Bodies to eliminate all kinds of discrimination, harassment and victimization.

Gender reassignment has been declared as one of the protected characteristics under the Act, of course, only the transsexuals i.e. those who are proposing to undergo, is undergoing or has undergone the process of the gender reassignment are protected under the Act.

36. In Australia, there are two Acts dealing with the gender identity, (1) Sex Discrimination Act, 1984; and (ii) Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013 (Act 2013). Act 2013 amends the Sex Discrimination Act, 1984. Act 2013 defines gender identity as the appearance or mannerisms or other gender- related characteristics of a person (whether by way of medical intervention or not) with or without regard to the person’s designated sex at birth.

Sections 5(A), (B) and (C) of the 2013 Act have some relevance and the same are extracted hereinbelow:- “5A Discrimination on the ground of sexual orientation

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s sexual orientation if, by reason of:

(a) the aggrieved person’s sexual orientation; or (b) a characteristic that appertains generally to persons who have the same sexual orientation as the aggrieved person; or (c) a characteristic that is generally imputed to persons who have the same sexual orientation as the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different sexual orientation.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s sexual orientation if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same sexual orientation as the aggrieved person.

(3) This section has effect subject to sections 7B and 7D.

5B Discrimination on the ground of gender identity (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if, by reason of:

(a) the aggrieved person’s gender identity; or (b) a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or (c) a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person.

(3) This section has effect subject to sections 7B and 7D.

5C Discrimination on the ground of intersex status (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s intersex status if, by reason of:

(a) the aggrieved person’s intersex status; or (b) a characteristic that appertains generally to persons of intersex status; or (c) a characteristic that is generally imputed to persons of intersex status;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who is not of intersex status.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s intersex status if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of intersex status.

(3) This section has effect subject to sections 7B and 7D.” Various other precautions have also been provided under the Act.

37. We may in this respect also refer to the European Union Legislations on transsexuals. Recital 3 of the Preamble to the Directive 2006/54/EC of European Parliament and the Council of 5 July 2006 makes an explicit reference to discrimination based on gender reassignment for the first time in European Union Law. Recital 3 reads as under :- “The Court of Justice has held that the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex. In view of this purpose and the nature of the rights which it seeks to safeguard, it also applies to discrimination arising from the gender reassignment of a person.”

38. European Parliament also adopted a resolution on discrimination against transsexuals on 12th September, 1989 and called upon the Member States to take steps for the protection of transsexual persons and to pass legislation to further that end. Following that Hungary has enacted Equal Treatment and the Promotion of Equal Opportunities Act, 2003, which includes sexual identity as one of the grounds of discrimination. 2010 paper on ‘Transgender Persons’ Rights in the EU Member States prepared by the Policy Department of the European Parliament presents the specific situation of transgender people in 27 Member States of the European Union.

In the United States of America some of the laws enacted by the States are inconsistent with each other. The Federal Law which provides protection to transgenders is The Matthew Shepard and James Byrd. Jr. Hate Crimes Prevention Act, 2009, which expands the scope of the 1969 United States Federal Hate-crime Law by including offences motivated by actual or perceived gender identity. Around 15 States and District of Colombia in the United States have legislations which prohibit discrimination on grounds of gender identity and expression. Few States have issued executive orders prohibiting discrimination.

39. The Parliament of South Africa in the year 2003, enacted Alteration of Sex Description and Sex Status Act, 2003, which permits transgender persons who have undergone gender reassignment or people whose sexual characteristics have evolved naturally or an intersexed person to apply to the Director General of the National Department of Home Affairs for alteration of his/her sex description in the birth register, though the legislation does not contemplate a more inclusive definition of transgenders.

40. The Senate of Argentina in the year 2012 passed a law on Gender Identity that recognizes right by all persons to the recognition of their gender identity as well as free development of their person according to their gender identity and can also request that their recorded sex be amended along with the changes in first name and image, whenever they do not agree with the self-perceived gender identity. Not necessary that they seemed to prove that a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychological or medical treatment had taken place. Article 12 deals with dignified treatment, respecting the gender identity adopted by the individual, even though the first name is different from the one recorded in their national identity documents. Further laws also provide that whenever requested by the individual, the adopted first name must be used for summoning, recording, filing, calling and any other procedure or service in public and private spaces.

41. In Germany, a new law has come into force on 5th November, 2013, which allows the parents to register the sex of the children as ‘not specified’ in the case of children with intersex variation. According to Article 22, Section 3 of the German Civil Statutes Act reads as follows:- “If a child can be assigned to neither the female nor the male sex then the child has to be named without a specification”

42. The law has also added a category of X, apart from “M” and “F” under the classification of gender in the passports.

Indian Scenario

43. We have referred exhaustively to the various judicial pronouncements and legislations on the international arena to highlight the fact that the recognition of “sex identity gender” of persons, and “guarantee to equality and non-discrimination” on the ground of gender identity or expression is increasing and gaining acceptance in international law and, therefore, be applied in India as well.

44. Historical background of Transgenders in India has already been dealth in the earlier part of this Judgment indicating that they were once treated with great respect, at least in the past, though not in the present. We can perceive a wide range of transgender related identities, cultures or experiences which are generally as follows:

“Hijras: Hijras are biological males who reject their ‘masculine’ identity in due course of time to identify either as women, or “not- men”, or “in-between man and woman”, or “neither man nor woman”.

Hijras can be considered as the western equivalent of transgender/transsexual (male-to-female) persons but Hijras have a long tradition/culture and have strong social ties formalized through a ritual called “reet” (becoming a member of Hijra community). There are regional variations in the use of terms referred to Hijras. For example, Kinnars (Delhi) and Aravanis (Tamil Nadu). Hijras may earn through their traditional work: ‘Badhai’ (clapping their hands and asking for alms), blessing new-born babies, or dancing in ceremonies.

Some proportion of Hijras engage in sex work for lack of other job opportunities, while some may be self-employed or work for non- governmental organisations.” (See UNDP India Report (December, 2010).

Eunuch: Eunuch refers to an emasculated male and intersexed to a person whose genitals are ambiguously male-like at birth, but this is discovered the child previously assigned to the male sex, would be recategorized as intesexexd – as a Hijra.

“Aravanis and ‘Thirunangi’ – Hijras in Tamil Nadu identify as “Aravani”. Tamil Nadu Aravanigal Welfare Board, a state government’s initiative under the Department of Social Welfare defines Aravanis as biological males who self-identify themselves as a woman trapped in a male’s body. Some Aravani activists want the public and media to use the term ‘Thirunangi’ to refer to Aravanis.

Kothi – Kothis are a heterogeneous group. ‘Kothis’ can be described as biological males who show varying degrees of ‘femininity’ – which may be situational. Some proportion of Kothis have bisexual behavior and get married to a woman. Kothis are generally of lower socioeconomic status and some engage in sex work for survival. Some proportion of Hijra-identified people may also identify themselves as ‘Kothis’. But not all Kothi identified people identify themselves as transgender or Hijras.

Jogtas/Jogappas: Jogtas or Jogappas are those persons who are dedicated to and serve as a servant of goddess Renukha Devi (Yellamma) whose temples are present in Maharashtra and Karnataka. ‘Jogta’ refers to male servant of that Goddess and ‘Jogti’ refers to female servant (who is also sometimes referred to as ‘Devadasi’). One can become a ‘Jogta’ (or Jogti) if it is part of their family tradition or if one finds a ‘Guru’ (or ‘Pujari’) who accepts him/her as a ‘Chela’ or ‘Shishya’ (disciple). Sometimes, the term ‘Jogti Hijras’ is used to denote those male-to-female transgender persons who are devotees/servants of Goddess Renukha Devi and who are also in the Hijra communities. This term is used to differentiate them from ‘Jogtas’ who are heterosexuals and who may or may not dress in woman’s attire when they worship the Goddess. Also, that term differentiates them from ‘Jogtis’ who are biological females dedicated to the Goddess. However, ‘Jogti Hijras’ may refer to themselves as ‘Jogti’ (female pronoun) or Hijras, and even sometimes as ‘Jogtas’.

Shiv-Shakthis: Shiv-Shakthis are considered as males who are possessed by or particularly close to a goddess and who have feminine gender expression. Usually, Shiv-Shakthis are inducted into the Shiv- Shakti community by senior gurus, who teach them the norms, customs, and rituals to be observed by them. In a ceremony, Shiv-Shakthis are married to a sword that represents male power or Shiva (deity). Shiv- Shakthis thus become the bride of the sword. Occasionally, Shiv- Shakthis cross-dress and use accessories and ornaments that are generally/socially meant for women. Most people in this community belong to lower socio-economic status and earn for their living as astrologers, soothsayers, and spiritual healers; some also seek alms.” (See Serena Nanda, Wadsworth Publishing Company, Second Edition (1999)

45. Transgender people, as a whole, face multiple forms of oppression in this country. Discrimination is so large and pronounced, especially in the field of health care, employment, education, leave aside social exclusion.

A detailed study was conducted by the United Nations Development Programme (UNDP – India) and submitted a report in December, 2010 on Hijras/transgenders in India: “HIV Human Rights and Social Exclusion”. The Report states that the HIV Human Immunodeficiency Virus and Sexually Transmitted Infections (STI) is now increasingly seen in Hijras/transgenders population. The estimated size of men who have sex with men (MSM) and male sex workers population in India (latter presumably includes Hijras/TG communities) is 2,352,133 and 235,213 respectively. It was stated that no reliable estimates are available for Hijras/TG women.

HIV prevalence among MSM population was 7.4% against the overall adult HIV prevalence of 0.36%. It was stated recently Hijras/TG people were included under the category of MSM in HIV sentinel serosurveillance. It is also reported in recent studies that Hijras/TG women have indicated a very high HIV prevalence (17.5% to 41%) among them. Study conducted by NACO also highlights a pathetic situation. Report submitted by NACI, NACP IV Working Group Hijras TG dated 5.5.2011 would indicate that transgenders are extremely vulnerable to HIV. Both the reports highlight the extreme necessity of taking emergent steps to improve their sexual health, mental health and also address the issue of social exclusion. The UNDP in its report has made the following recommendations, which are as under:

“Multiple problems are faced by Hijras/TG, which necessitate a variety of solutions and actions. While some actions require immediate implementation such as introducing Hijra/TG-specific social welfare schemes, some actions need to be taken on a long-term basis changing the negative attitude of the general public and increasing accurate knowledge about Hijra/TG communities. The required changes need to be reflected in policies and laws; attitude of the government, general public and health care providers; and health care systems and practice. Key recommendations include the following:

1. Address the gape in NACP-III: establish HIV sentinel serosurveillance sites for Hijras/TG at strategic locations;

conduct operations research to design and fine-tune culturally- relevant package of HIV prevention and care interventions for Hijras/TG; provide financial support for the formation of CBOs run by Hijras/TG; and build the capacity of CBOs to implement effective rogrammes.

2. Move beyond focusing on individual-level HIV prevention activities to address the structural determinants of risks and mitigate the impact of risks. For example, mental health counseling, crisis intervention (crisis in relation to suicidal tendencies, police harassment and arrests, support following sexual and physical violence), addressing alcohol and drug abuse, and connecting to livelihood programs all need to be part of the HIV interventions.

3. Train health care providers to be competent and sensitive in providing health care services (including STI and HIV-related services) to Hijras/TG as well as develop and monitor implementation of guidelines related to gender transition and sex reassignment surgery (SRS).

4. Clarify the ambiguous legal status of sex reassignment surgery and provide gender transition and SRS services (with proper pre-and post-operation/transition counseling) for free in public hospitals in various parts in India.

5. Implement stigma and discrimination reduction measures at various settings through a variety of ways: mass media awareness for the general public to focused training and sensitization for police and health care providers.

6. Develop action steps toward taking a position on legal recognition of gender identity of Hijras/TG need to be taken in consultation with Hijras/TG and other key stakeholders. Getting legal recognition and avoiding ambiguities in the current procedures that issue identity documents to Hijras/TGs are required as they are connected to basic civil rights such as access to health and public services, right to vote, right to contest elections, right to education, inheritance rights, and marriage and child adoption.

7. Open up the existing Social Welfare Schemes for needy Hijras/TG and create specific welfare schemes to address the basic needs of Hijras/TG including housing and employment needs.

8. Ensure greater involvement of vulnerable communities including Hijras/TG women in policy formulation and program development.”

46. Social exclusion and discrimination on the ground of gender stating that one does not conform to the binary gender (male/female) does prevail in India. Discussion on gender identity including self-identification of gender of male/female or as transgender mostly focuses on those persons who are assigned male sex at birth, whether one talks of Hijra transgender, woman or male or male to female transgender persons, while concern voiced by those who are identified as female to male trans-sexual persons often not properly addressed. Female to male unlike Hijra/transgender persons are not quite visible in public unlike Hijra/transgender persons. Many of them, however, do experience violence and discrimination because of their sexual orientation or gender identity.

INDIA TO FOLLOW INTERNATIONAL CONVENTIONS

47. International Conventions and norms are significant for the purpose of interpretation of gender equality. Article 1 of the Universal declaration on Human Rights, 1948, states that all human-beings are born free and equal in dignity and rights. Article 3 of the Universal Declaration of Human Rights states that everyone has a right to life, liberty and security of person. Article 6 of the International Covenant on Civil and Political Rights, 1966 affirms that every human-being has the inherent right to life, which right shall be protected by law and no one shall be arbitrarily deprived of his life. Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights provide that no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment. United Nations Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment (dated 24th January, 2008) specifically deals with protection of individuals and groups made vulnerable by discrimination or marginalization. Para 21 of the Convention states that States are obliged to protect from torture or ill-treatment all persons regardless of sexual orientation or transgender identity and to prohibit, prevent and provide redress for torture and ill-treatment in all contests of State custody or control. Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights state that no one shall be subjected to “arbitrary or unlawful interference with his privacy, family, home or correspondence”.

48. Above-mentioned International Human Rights instruments which are being followed by various countries in the world are aimed to protect the human rights of transgender people since it has been noticed that transgenders/transsexuals often face serious human rights violations, such as harassment in work place, hospitals, places of public conveniences, market places, theaters, railway stations, bus stands, and so on.

49. Indian Law, on the whole, only recognizes the paradigm of binary genders of male and female, based on a person’s sex assigned by birth, which permits gender system, including the law relating to marriage, adoption, inheritance, succession and taxation and welfare legislations.

We have exhaustively referred to various articles contained in the Universal Declaration of Human Rights, 1948, the International Covenant on Economic, Social and Cultural Rights, 1966, the International Covenant on Civil and Political Rights, 1966 as well as the Yogyakarta principles.

Reference was also made to legislations enacted in other countries dealing with rights of persons of transgender community. Unfortunately we have no legislation in this country dealing with the rights of transgender community. Due to the absence of suitable legislation protecting the rights of the members of the transgender community, they are facing discrimination in various areas and hence the necessity to follow the International Conventions to which India is a party and to give due respect to other non-binding International Conventions and principles.

Constitution makers could not have envisaged that each and every human activity be guided, controlled, recognized or safeguarded by laws made by the legislature. Article 21 has been incorporated to safeguard those rights and a constitutional Court cannot be a mute spectator when those rights are violated, but is expected to safeguard those rights knowing the pulse and feeling of that community, though a minority, especially when their rights have gained universal recognition and acceptance.

50. Article 253 of the Constitution of India states that the Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention. Generally, therefore, a legislation is required for implementing the international conventions, unlike the position in the United States of America where the rules of international law are applied by the municipal courts on the theory of their implied adoption by the State, as a part of its own municipal law. Article VI, Cl. (2) of the U.S. Constitution reads as follows:

“……all treaties made, or which shall be made, under the authority of the united States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary not-withstanding.”

51. In the United States, however, it is open to the courts to supersede or modify international law in its application or it may be controlled by the treaties entered into by the United States. But, till an Act of Congress is passed, the Court is bound by the law of nations, which is part of the law of the land. Such a ‘supremacy clause’ is absent in our Constitution. Courts in India would apply the rules of International law according to the principles of comity of Nations, unless they are overridden by clear rules of domestic law. See: Gramophone Company of India Ltd. v. Birendra Bahadur Pandey [1984] INSC 39; (1984) 2 SCC 534 and Tractor Export v. Tarapore & Co. [1969] INSC 312; (1969) 3 SCC 562, Mirza Ali Akbar Kashani v. United Arab Republic (1966) 1 SCR 391. In the case of Jolly George Varghese v. Bank of Cochin [1980] INSC 19; (1980) 2 SCC 360, the Court applied the above principle in respect of the International Covenant on Civil and Political Rights, 1966 as well as in connection with the Universal Declaration of Human Rights.

India has ratified the above mentioned covenants, hence, those covenants can be used by the municipal courts as an aid to the Interpretation of Statutes by applying the Doctrine of Harmonization. But, certainly, if the Indian law is not in conflict with the International covenants, particularly pertaining to human rights, to which India is a party, the domestic court can apply those principles in the Indian conditions. The Interpretation of International Conventions is governed by Articles 31 and 32 of the Vienna Convention on the Law of Treaties of 1969.

52. Article 51 of the Directive Principles of State Policy, which falls under Part IV of the Indian Constitution, reads as under:

“Art. 51. The State shall endeavour to – a) promote international peace and security;

b) maintain just and honourable relations between nations;

c) Foster respect for international law and treaty obligation in the dealings of organised peoples with one another; and d) Encourage settlement of international disputes by arbitration.”

53. Article 51, as already indicated, has to be read along with Article 253 of the Constitution. If the parliament has made any legislation which is in conflict with the international law, then Indian Courts are bound to give effect to the Indian Law, rather than the international law. However, in the absence of a contrary legislation, municipal courts in India would respect the rules of international law. In His Holiness Kesavananda Bharati Sripadavalvaru v. State of Kerala (1973) 4 SCC 225, it was stated that in view of Article 51 of the Constitution, the Court must interpret language of the Constitution, if not intractable, in the light of United Nations Charter and the solemn declaration subscribed to it by India. In Apparel Export Promotion Council v. A. K. Chopra (1999) 1 SCC 759, it was pointed out that domestic courts are under an obligation to give due regard to the international conventions and norms for construing the domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. Reference may also be made to the Judgments of this Court in Githa Hariharan (Ms) and another v. Reserve Bank of India and another (1999) 2 SCC 228, R.D. Upadhyay v. State of Andhra Pradesh and others (2007) 15 SCC 337 and People’s Union for Civil Liberties v. Union of India and another (2005) 2 SCC 436. In Vishaka and others v. State of Rajasthan and Others (1997) 6 SCC 241, this Court under Article 141 laid down various guidelines to prevent sexual harassment of women in working places, and to enable gender equality relying on Articles 11, 24 and general recommendations 22, 23 and 24 of the Convention on the Elimination of All Forms of Discrimination against Women. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions, e.g., Articles 14, 15, 19 and 21 of the Constitution to enlarge the meaning and content thereof and to promote the object of constitutional guarantee. Principles discussed hereinbefore on TGs and the International Conventions, including Yogyakarta principles, which we have found not inconsistent with the various fundamental rights guaranteed under the Indian Constitution, must be recognized and followed, which has sufficient legal and historical justification in our country.

ARTICLE 14 AND TRANSGENDERS

54. Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequals or unequals as equals will be violative of the basic structure of the Constitution. Article 14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including TGs may enjoy equal protection of laws and nobody is denied such protection. Article 14 does not restrict the word ‘person’ and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression ‘person’ and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.

55. Petitioners have asserted as well as demonstrated on facts and figures supported by relevant materials that despite constitutional guarantee of equality, Hijras/transgender persons have been facing extreme discrimination in all spheres of the society. Non-recognition of the identity of Hijras/transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police.

Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities. Further, non- recognition of identity of Hijras /transgender persons results in them facing extreme discrimination in all spheres of society, especially in the field of employment, education, healthcare etc. Hijras/transgender persons face huge discrimination in access to public spaces like restaurants, cinemas, shops, malls etc. Further, access to public toilets is also a serious problem they face quite often. Since, there are no separate toilet facilities for Hijras/transgender persons, they have to use male toilets where they are prone to sexual assault and harassment.

Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.

ARTICLES 15 & 16 AND TRANSGENDERS

56. Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds, including the ground of ‘sex’. In fact, both the Articles prohibit all forms of gender bias and gender based discrimination.

57. Article 15 states that the State shall not discriminate against any citizen, inter alia, on the ground of sex, with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

The requirement of taking affirmative action for the advancement of any socially and educationally backward classes of citizens is also provided in this Article.

58. Article 16 states that there shall be equality of opportunities for all the citizens in matters relating to employment or appointment to any office under the State. Article 16 (2) of the Constitution of India reads as follows :

“16(2). No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.” Article 16 not only prohibits discrimination on the ground of sex in public employment, but also imposes a duty on the State to ensure that all citizens are treated equally in matters relating to employment and appointment by the State.

59. Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognizing that sex discrimination is a historical fact and needs to be addressed. Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.

60. TGs have been systematically denied the rights under Article 15(2) that is not to be subjected to any disability, liability, restriction or condition in regard to access to public places. TGs have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. TGs have also been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution. State is bound to take affirmative action to give them due representation in public services.

61. Articles 15(2) to (4) and Article 16(4) read with the Directive Principles of State Policy and various international instruments to which Indian is a party, call for social equality, which the TGs could realize, only if facilities and opportunities are extended to them so that they can also live with dignity and equal status with other genders.

ARTICLE 19(1)(a) AND TRANSGENDERS

62. Article 19(1) of the Constitution guarantees certain fundamental rights, subject to the power of the State to impose restrictions from exercise of those rights. The rights conferred by Article 19 are not available to any person who is not a citizen of India. Article 19(1) guarantees those great basic rights which are recognized and guaranteed as the natural rights inherent in the status of the citizen of a free country.

Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.

63. We may, in this connection, refer to few judgments of the US Supreme Courts on the rights of TG’s freedom of expression. The Supreme Court of the State of Illinois in the City of Chicago v. Wilson et al., 75 III.2d 525(1978) struck down the municipal law prohibiting cross-dressing, and held as follows “- “the notion that the State can regulate one’s personal appearance, unconfined by any constitutional strictures whatsoever, is fundamentally inconsistent with “values of privacy, self-identity, autonomy and personal integrity that …. the Constitution was designed to protect.”

64. In Doe v. Yunits et al., 2000 WL33162199 (Mass. Super.), the Superior Court of Massachusetts, upheld the right of a person to wear school dress that matches her gender identity as part of protected speech and expression and observed as follows :- “by dressing in clothing and accessories traditionally associated with the female gender, she is expressing her identification with the gender. In addition, plaintiff’s ability to express herself and her gender identity through dress is important for her health and well- being. Therefore, plaintiff’s expression is not merely a personal preference but a necessary symbol of her identity.”

65. Principles referred to above clearly indicate that the freedom of expression guaranteed under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc.

66. Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.

ARTICLE 21 AND THE TRANSGENDERS 67. Article 21 of the Constitution of India reads as follows:

“21. Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty. Right to life is one of the basic fundamental rights and not even the State has the authority to violate or take away that right. Article 21 takes all those aspects of life which go to make a person’s life meaningful. Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc. Right to dignity has been recognized to be an essential part of the right to life and accrues to all persons on account of being humans. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608 (paras 7 and 8), this Court held that the right to dignity forms an essential part of our constitutional culture which seeks to ensure the full development and evolution of persons and includes “expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings”.

68. Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.

69. Article 21, as already indicated, guarantees the protection of “personal autonomy” of an individual. In Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 (paragraphs 34-35), this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.

LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY

70. Self-identified gender can be either male or female or a third gender. Hijras are identified as persons of third gender and are not identified either as male or female. Gender identity, as already indicated, refers to a person’s internal sense of being male, female or a transgender, for example Hijras do not identify as female because of their lack of female genitalia or lack of reproductive capability. This distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a “third gender”. Hijras, therefore, belong to a distinct socio-religious and cultural group and have, therefore, to be considered as a “third gender”, apart from male and female. State of Punjab has treated all TGs as male which is not legally sustainable. State of Tamil Nadu has taken lot of welfare measures to safeguard the rights of TGs, which we have to acknowledge. Few States like Kerala, Tripura, Bihar have referred TGs as “third gender or sex”. Certain States recognize them as “third category”. Few benefits have also been extended by certain other States. Our neighbouring countries have also upheld their fundamental rights and right to live with dignity.

71. The Supreme Court of Nepal in Sunil Babu Pant & Ors. v. Nepal Government (Writ Petition No.917 of 2007 decided on 21st December, 2007), spoke on the rights of Transgenders as follows:- “the fundamental rights comprised under Part II of the Constitution are enforceable fundamental human rights guaranteed to the citizens against the State. For this reason, the fundamental rights stipulated in Part III are the rights similarly vested in the third gender people as human beings. The homosexuals and third gender people are also human beings as other men and women are, and they are the citizens of this country as well… Thus, the people other than ‘men’ and ‘women’, including the people of ‘third gender’ cannot be discriminated. The State should recognize the existence of all natural persons including the people of third gender other than the men and women. And it cannot deprive the people of third gender from enjoying the fundamental rights provided by Part III of the Constitution.” 72. The Supreme Court of Pakistan in Dr. Mohammad Aslam Khaki & Anr. V.

Senior Superintendent of Police (Operation) Rawalpindi & Ors. (Constitution Petition No.43 of 2009) decided on 22nd March, 2011, had occasion to consider the rights of eunuchs and held as follows:- “Needless to observe that eunuchs in their rights are citizens of this country and subject to the Constitution of the Islamic Republic of Pakistan, 1973, their rights, obligations including right to life and dignity are equally protected. Thus no discrimination, for any reason, is possible against them as far as their rights and obligations are concerned. The Government functionaries both at federal and provincial levels are bound to provide them protection of life and property and secure their dignity as well, as is done in case of other citizens.”

73. We may remind ourselves of the historical presence of the third gender in this country as well as in the neighbouring countries.

74. Article 21, as already indicated, protects one’s right of self- determination of the gender to which a person belongs. Determination of gender to which a person belongs is to be decided by the person concerned.

In other words, gender identity is integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination”.

Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.

75. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude Hijras/Transgenders from its ambit, but Indian law on the whole recognize the paradigm of binary genders of male and female, based on one’s biological sex. As already indicated, we cannot accept the Corbett principle of “Biological Test”, rather we prefer to follow the psyche of the person in determining sex and gender and prefer the “Psychological Test” instead of “Biological Test”. Binary notion of gender reflects in the Indian Penal Code, for example, Section 8, 10, etc. and also in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations like NAREGA, 2005, etc. Non-recognition of the identity of Hijras/Transgenders in the various legislations denies them equal protection of law and they face wide-spread discrimination.

76. Article 14 has used the expression “person” and the Article 15 has used the expression “citizen” and “sex” so also Article 16. Article 19 has also used the expression “citizen”. Article 21 has used the expression “person”. All these expressions, which are “gender neutral” evidently refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender.

Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.

77. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.

………………….J (K.S. Radhakrishnan) A.K. SIKRI,J.

78. I have carefully, and with lot of interest, gone through the perspicuous opinion of my brother Radhakrishnan,J. I am entirely in agreement with the discussion contained in the said judgment on all the cardinal issues that have arisen for consideration in these proceedings. At the same time, having regard to the fact that the issues involved are of seminal importance, I am also inclined to pen down my thoughts.

79. As is clear, these petitions essentially raise an issue of “Gender Identity”, which is the core issue. It has two facets, viz.:

“(a) Whether a person who is born as a male with predominantly female orientation (or vice-versa), has a right to get himself to be recognized as a female as per his choice moreso, when such a person after having undergone operational procedure, changes his/her sex as well;

(b) Whether transgender (TG), who are neither males nor females, have a right to be identified and categorized as a “third gender”?

80. We would hasten to add that it is the second issue with which we are primarily concerned in these petitions though in the process of discussion, first issue which is somewhat inter-related, has also popped up.

81. Indubitably, the issue of choice of gender identify has all the trappings of a human rights. That apart, as it becomes clear from the reading of the judgment of my esteemed Brother Radhakrishnan,J., the issue is not limited to the exercise of choice of gender/sex. Many rights which flow from this choice also come into play, inasmuch not giving them the status of a third gender results in depriving the community of TGs of many of their valuable rights and privileges which other persons enjoy as citizens of this Country. There is also deprivation of social and cultural participation which results into eclipsing their access to education and health services. Radhakrishnan,J. has exhaustively described the term ‘Transgender’ as an umbrella term which embraces within itself a wide range of identities and experiences including but not limited to pre- operative/post-operative trans sexual people who strongly identify with the gender opposite to their biological sex i.e. male/ female. Therein, the history of transgenders in India is also traced and while doing so, there is mention of upon the draconian legislation enacted during the British Rule, known as Criminal Tribes Act, 1871 which treated, per se, the entire community of Hizra persons as innately ‘criminals’, ‘addicted to the systematic commission of non-bailable offences’.

82. With these introductory remarks, I revert to the two facets of pivotal importance mentioned above. Before embarking on the discussion, I may clarify that my endeavour would be not to repeat the discussion contained in the judgment of my Brother Radhakrishnan, J., as I agree with every word written therein. However, at times, if some of the observations are re-narrated, that would be only with a view to bring continuity in the thought process.

(1) Re: Right of a person to have the gender of his/her choice.

When a child is born, at the time of birth itself, sex is assigned to him/her. A child would be treated with that sex thereafter, i.e. either a male or a female. However, as explained in detail in the accompanying judgment, some persons, though relatively very small in number, may born with bodies which incorporate both or certain aspects of both male or female physiology. It may also happen that though a person is born as a male, because of some genital anatomy problems his innate perception may be that of a female and all his actions would be female oriented. The position may be exactly the opposite wherein a person born as female may behave like a male person.

83. In earlier times though one could observe such characteristics, at the same time the underlying rationale or reason behind such a behavior was not known. Over a period of time, with in depth study and research of such physical and psychological factors bevaviour, the causes of this behaviour have become discernable which in turn, has led to some changes in societal norms. Society has starting accepting, though slowly, these have accepted the behavioral norms of such persons without treating it as abnormal.

Further, medical science has leaped forward to such an extent that even physiology appearance of a person can be changed through surgical procedures, from male to female and vice-versa. In this way, such persons are able to acquire the body which is in conformity with the perception of their gender/gender characteristics. In order to ensure that law also keeps pace with the aforesaid progress in medical science, various countries have come out with Legislation conferring rights on such persons to recognize their gender identity based on reassigned sex after undergoing Sex Re-Assignment Surgery (SRS). Law and judgments given by the courts in other countries have been exhaustively and grandiloquently traversed by my learned Brother in his judgment, discussing amongst others, the Yogyakarta principles, the relevant provisions of the Universal Declaration of Human Rights 1948 and highlighting the statutory framework operating in those countries.

84. The genesis of this recognition lies in the acknowledgment of another fundamental and universal principal viz. “right of choice” given to an individual which is the inseparable part of human rights. It is a matter of historical significance that the 20th Century is often described as “the age of rights”.

85. The most important lesson which was learnt as a result of Second World War was the realization by the Governments of various countries about the human dignity which needed to be cherished and protected. It is for this reason that in the U.N.Charter, 1945, adopted immediately after the Second World War, dignity of the individuals was mentioned as of core value. The almost contemporaneous Universal Declaration of Human Rights (1948) echoed same sentiments.

86. The underlined message in the aforesaid documents is the acknowledgment that human rights are individual and have a definite linkage of human development, both sharing common vision and with a common purpose.

Respect for human rights is the root for human development and realization of full potential of each individual, which in turn leads to the augmentation of human resources with progress of the nation. Empowerment of the people through human development is the aim of human rights.

87. There is thus a universal recognition that human rights are rights that “belong” to every person, and do not depend on the specifics of the individual or the relationship between the right-holder and the right- grantor. Moreover, human rights exist irrespective of the question whether they are granted or recognized by the legal and social system within which we live. They are devices to evaluate these existing arrangements: ideally, these arrangements should not violate human rights. In other words, human rights are moral, pre-legal rights. They are not granted by people nor can they be taken away by them.

88. In international human rights law, equality is found upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms.

Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of the TGs, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti- discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.

89. Nevertheless, the Universal Declaration of Human Rights recognizes that all human beings are born free and equal in dignity and rights and, since the Covenant’s provisions apply fully to all members of society, persons with disabilities are clearly entitled to the full range of rights recognized in the Covenant. Moreover, the requirement contained in Article 2 of the Covenant that the rights enunciated will be exercised without discrimination of any kind based on certain specified grounds or other status clearly applies to cover persons with disabilities.

90. India attained independence within two years of adoption of the aforesaid U.N.Charter and it was but natural that such a Bill of Rights would assume prime importance insofar as thinking of the members of the Constituent Assembly goes. It in fact did and we found chapter on fundamental rights in Part-III of the Constitution. It is not necessary for me, keeping in view the topic of today’s discussion, to embark on detailed discussion on Chapter-III. Some of the provisions relevant for our purposes would be Article 14, 15,16 and 21 of the Constitution which have already been adverted to in detail in the accompanying judgment. At this juncture it also needs to be emphasized simultaneously is that in addition to the fundamental rights, Constitution makers also deemed it proper to impose certain obligations on the State in the form of “Directive Principles of State Policy” (Part-IV) as a mark of good governance. It is this part which provides an ideal and purpose to our Constitution and delineates certain principles which are fundamental in the governance of the country.

Dr.Ambedkar had explained the purpose of these Directive Principles in the following manner (See Constituent Assembly debates):

“The Directive Principles are like the Instruments of Instructions which were issued to the Governor-General and the Governors of Colonies, and to those of India by the British Government under the 1935 Government of India Act. What is called “Directive Principles” is merely another name for the Instrument of Instructions. The only difference is that they are instructions to the legislature and the executive. Whoever capture power will not be free to do what he likes with it. In the exercise of it he will have to respect these instruments of instructions which are called Directive Principles”.

91. The basic spirit of our Constitution is to provide each and every person of the nation equal opportunity to grow as a human being, irrespective of race, caste, religion, community and social status.

Granville Austin while analyzing the functioning of Indian Constitution in first 50 years ha described three distinguished strands of Indian Constitution: (i)protecting national unity and integrity, (ii)establishing the institution and spirit of democracy; and (iii) fostering social reforms. The Strands are mutually dependent, and inextricably intertwined in what he elegantly describes as “a seamless web”. And there cannot be social reforms till it is ensured that each and every citizen of this country is able to exploit his/her potentials to the maximum. The Constitution, although drafted by the Constituent Assembly, was meant for the people of India and that is why it is given by the people to themselves as expressed in the opening words “We the People”. What is the most important gift to the common person given by this Constitution is “fundamental rights” which may be called Human Rights as well.

92. The concept of equality in Article 14 so also the meaning of the words ‘life’, ‘liberty’ and ‘law’ in Article 21 have been considerably enlarged by judicial decisions. Anything which is not ‘reasonable, just and fair’ is not treated to be equal and is, therefore, violative of Article 14.

93. Speaking for the vision of our founding fathers, in State of Karnataka v. Rangnatha Reddy (AIR 1978 SC 215), this Court speaking through Justice Krishna Iyer observed:

“The social philosophy of the Constitution shapes creative judicial vision and orientation. Our nation has, as its dynamic doctrine, economic democracy sans which political democracy is chimerical. We say so because our Constitution, in Parts III and IV and elsewhere, ensouls such a value system, and the debate in this case puts precisely this soul in peril…Our thesis is that the dialectics of social justice should not be missed if the synthesis of Parts III and Part IV is to influence State action and court pronouncements. Constitutional problems cannot be studied in a socio-economic vacuum, since socio- cultural changes are the source of the new values, and sloughing off old legal thought is part of the process the new equity- loaded legality. A judge is a social scientist in his role as constitutional invigilator and fails functionally if he forgets this dimension in his complex duties.”

94. While interpreting Art. 21, this Court has comprehended such diverse aspects as children in jail entitled to special treatment (Sheela Barse vs.

Union of India [(1986)3 SCC 596], health hazard due to pollution (Mehta M.C. v. Union of India [(1987) 4 SCC 463], beggars interest in housing 1768), delay in execution of death sentence, immediate medical aid to (Delhi Admn.) [1988] INSC 203; AIR 1988 SC 1883), inhuman conditions an after-care

95. A most remarkable feature of this expansion of Art.21 is that many of the non-justiciable Directive Principles embodied in Part IV of the Constitution have now been resurrected as enforceable fundamental rights by the magic wand of judicial activism, playing on Art.21 e.g.

Bihar, AIR 1991 SC 420).

Khimalal Totame AIR 1990 SC 630).

(c) Right to food (Supra note 14), clothing, decent environment (supra note 20) and even protection of cultural heritage (Ram Sharan (d) Right of every child to a full development (Shantistar Builders (e) Right of residents of hilly-areas to access to roads(State of of A.P., AIR 1993 SC 2178).

96. A corollary of this development is that while so long the negative language of Art.21 and use of the word ‘deprived’ was supposed to impose upon the State the negative duty not to interfere with the life or liberty of an individual without the sanction of law, the width and amplitude of this provision has now imposed a positive obligation (Vincent ensuring to the individual a better enjoyment of his life and dignity, e.g.

– (i) Maintenance and improvement of public health (Vincent (1987) 4 SCC 463).

Ram Sharma [1986] INSC 12; AIR 1986 SC 847).

UOI[1983] INSC 206; , AIR 1984 SC 802).

3 SCC 596).

(vi) Providing hygienic condition in a slaughter-house (Buffalo

97. The common golden thread which passes through all these pronouncements is that Art.21 guarantees enjoyment of life by all citizens of this country with dignity, viewing this human rights in terms of human development.

98. The concepts of justice social, economic and political, equality of status and of opportunity and of assuring dignity of the individual incorporated in the Preamble, clearly recognize the right of one and all amongst the citizens of these basic essentials designed to flower the citizen’s personality to its fullest. The concept of equality helps the citizens in reaching their highest potential.

99. Thus, the emphasis is on the development of an individual in all respects. The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set up.

Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method by which we attempt to raise the living standard of the people and to give opportunities to every person to develop his/her personality. It is founded on peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex/gender identity which is integral his/her personality and is one of the most basic aspect of self-determination dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity.

100. More than 225 years ago, Immanuel Kant propounded the doctrine of free will, namely the free willing individual as a natural law ideal.

Without going into the detail analysis of his aforesaid theory of justice (as we are not concerned with the analysis of his jurisprudence) what we want to point out is his emphasis on the “freedom” of human volition. The concepts of volition and freedom are “pure”, that is not drawn from experience. They are independent of any particular body of moral or legal rules. They are presuppositions of all such rules, valid and necessary for all of them.

101. Over a period of time, two divergent interpretations of the Kantian criterion of justice came to be discussed. One trend was an increasing stress on the maximum of individual freedom of action as the end of law.

This may not be accepted and was criticized by the protagonist of ‘hedonist utilitarianism’, notably Benthem. This school of thoughts laid emphasis on the welfare of the society rather than an individual by propounding the principle of maximum of happiness to most of the people. Fortunately, in the instant case, there is no such dichotomy between the individual freedom/liberty we are discussing, as against public good. On the contrary, granting the right to choose gender leads to public good. The second tendency of Kantian criterion of justice was found in re-interpreting “freedom” in terms not merely of absence of restraint but in terms of attainment of individual perfection. It is this latter trend with which we are concerned in the present case and this holds good even today. As pointed out above, after the Second World War, in the form of U.N.Charter and thereafter there is more emphasis on the attainment of individual perfection. In that united sense at least there is a revival of natural law theory of justice. Blackstone, in the opening pages in his ‘Vattelian Fashion’ said that the principal aim of society “is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature….” 102. In fact, the recognition that every individual has fundamental right to achieve the fullest potential, is founded on the principle that all round growth of an individual leads to common public good. After all, human beings are also valuable asset of any country who contribute to the growth and welfare of their nation and the society. A person who is born with a particular sex and his forced to grow up identifying with that sex, and not a sex that his/her psychological behavior identifies with, faces innumerable obstacles in growing up. In an article appeared in the magazine “Eye” of the Sunday Indian Express (March 9-15, 2014) a person born as a boy but with trappings of female ( who is now a female after SRS) has narrated these difficulties in the following manner:

“The other children treated me as a boy, but I preferred playing with girls. Unfortunately, grown-ups consider that okay only as long as you are a small child. The constant inner conflict made things difficult for me and, as I grew up, I began to dread social interactions”.

103. Such a person, carrying dual entity simultaneously, would encounter mental and psychological difficulties which would hinder his/her normal mental and even physical growth. It is not even easy for such a person to take a decision to undergo SRS procedure which requires strong mental state of affairs. However, once that is decided and the sex is changed in tune with psychological behavior, it facilitates spending the life smoothly.

Even the process of transition is not smooth. The transition from a man to a woman is not an overnight process. It is a “painfully” long procedure that requires a lot of patience. A person must first undergo hormone therapy and, if possible, live as a member of the desired sex for a while. To be eligible for hormone therapy, the person needs at least two psychiatrists to certify that he or she is mentally sound, and schizophrenia, depression and transvestism have to be ruled out first. The psychiatric evaluation involved a serious a questions on how Sunaina felt, when she got to know of her confusion and need for sex change, whether she is a recluse, her socio-economic condition, among other things.

104. In the same article appearing in the “Eye” referred to above, the person who had undergone the operation and became a complete girl, Sunaina (name changed) narrates the benefit which ensued because of change in sex, in harmony with her emotional and psychological character, as is clear from the following passage in that article:

“Like many other single people in the city, she can spend hours watching Friends, and reading thrillers and Harry Potter. A new happiness has taken seed in her and she says it does not feel that she ever had a male body. “I am a person who likes to laugh. Till my surgery, behind every smile of mine, there was a struggle. Now it’s about time that I laughed for real. I have never had a relationship in my life, because somewhere, I always wanted to be treated as a girl. Now, that I am a woman, I am open to a new life, new relationships. I don’t have to hide anymore, I don’t feel trapped anymore. I love coding and my job. I love cooking. I am learning French and when my left foot recovers fully, I plan to learn dancing. And, for the first time this year, I will vote with my new name. I am looking forward to that,” she says.

105. If a person has changed his/her sex in tune with his/her gender characteristics and perception ,which has become possible because of the advancement in medical science, and when that is permitted by in medical ethics with no legal embargo, we do not find any impediment, legal or otherwise, in giving due recognition to the gender identity based on the reassign sex after undergoing SRS.

106. For these reasons, we are of the opinion that even in the absence of any statutory regime in this country, a person has a constitutional right to get the recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well.

(2) Re: Right of TG to be identified and categorized as “third gender”.

107. At the outset, it may be clarified that the term ‘transgender’ is used in a wider sense, in the present age. Even Gay, Lesbian, bisexual are included by the descriptor ‘transgender’. Etymologically, the term ‘transgender’ is derived from two words, namely ‘trans’ and ‘gender’.

Former is a Latin word which means ‘across’ or ‘beyond’. The grammatical meaning of ‘transgender’, therefore, is across or beyond gender. This has come to be known as umbrella term which includes Gay men, Lesbians, bisexuals, and cross dressers within its scope. However, while dealing with the present issue we are not concerned with this aforesaid wider meaning of the expression transgender.

108. It is to be emphasized that Transgender in India have assumed distinct and separate class/category which is not prevalent in other parts of the World except in some neighbouring countries . In this country, TG community comprise of Hijaras, enunch, Kothis, Aravanis, Jogappas, Shiv- Shakthis etc. In Indian community transgender are referred as Hizra or the third gendered people. There exists wide range of transgender-related identities, cultures, or experience –including Hijras, Aravanis, Kothis, jogtas/Jogappas, and Shiv-Shakthis (Hijras: They are biological males who reject their masculinity identity in due course of time to identify either as women, or ‘not men’. Aravanis: Hijras in Tamil Nadu identify as ‘Aravani’. Kothi: Kothis are heterogeneous group. Kothis can be described as biological males who show varying degrees of ‘feminity’.

Jogtas/Jogappas: They are those who are dedicated to serve as servant of Goddess Renukha Devi whose temples are present in Maharashtra and Karnataka. Sometimes, Jogti Hijras are used to denote such male-to-female transgender persons who are devotees of Goddess Renukha and are also from the Hijra community. Shiv-Shakthis: They are considered as males who are possessed by or particularly close to a goddess and who have feminine gender expression). The way they behave and acts differs from the normative gender role of a men and women. For them, furthering life is far more difficult since such people are neither categorized as men nor women and this deviation is unacceptable to society’s vast majority. Endeavour to live a life with dignity is even worse. Obviously transvestites, the hijra beg from merchants who quickly, under threat of obscene abuse, respond to the silent demands of such detested individuals. On occasion, especially festival days, they press their claims with boisterous and ribald singing and dancing.( A Right to Exist: Eunuchs and the State in Nineteenth-Century India Laurence W. Preston Modern Asian Studies, Vol.21,No.2 (1987), pp.371- 387).

109. Therefore, we make it clear at the outset that when we discuss about the question of conferring distinct identity, we are restrictive in our meaning which has to be given to TG community i.e. hijra etc., as explained above.

110. Their historical background and individual scenario has been stated in detail in the accompanying judgment rendered by my learned Brother. Few things which follow from this discussion are summed up below:

“(a) Though in the past TG in India was treated with great respect, that does not remain the scenario any longer. Attrition in their status was triggered with the passing of the Criminal Tribes Act, 1871 which deemed the entire community of Hijara persons as innately ‘criminal’ and ‘adapted to the systematic commission of non-bailable offences’. This dogmatism and indoctrination of Indian people with aforesaid presumption, was totally capricious and nefarious. There could not have been more harm caused to this community with the passing of the aforesaid brutal Legislation during British Regime with the vicious and savage this mind set. To add insult to the irreparable injury caused, Section 377 of the Indian Penal Code was misused and abused as there was a tendency, in British period, to arrest and prosecute TG persons under Section 377 merely on suspicion. To undergo this sordid historical harm caused to TGs of India, there is a need for incessant efforts with effervescence.

(b) There may have been marginal improvement in the social and economic condition of TGs in India. It is still far from satisfactory and these TGs continue to face different kinds of economic blockade and social degradation. They still face multiple forms of oppression in this country. Discrimination qua them is clearly discernable in various fields including health care, employment, education, social cohesion etc.

(c) The TGs are also citizens of this country. They also have equal right to achieve their full potential as human beings. For this purpose, not only they are entitled to proper education, social assimilation, access to public and other places but employment opportunities as well. The discussion above while dealing with the first issue, therefore, equally applies to this issue as well.

111. We are of the firm opinion that by recognizing such TGs as third gender, they would be able to enjoy their human rights, to which they are largely deprived of for want of this recognition. As mentioned above, the issue of transgender is not merely a social or medical issue but there is a need to adopt human right approach towards transgenders which may focus on functioning as an interaction between a person and their environment highlighting the role of society and changing the stigma attached to them.

TGs face many disadvantages due to various reasons, particularly for gender abnormality which in certain level needs to physical and mental disability.

Up till recently they were subjected to cruelty, pity or charity.

Fortunately, there is a paradigm shift in thinking from the aforesaid approach to a rights based approach. Though, this may be the thinking of human rights activist, the society has not kept pace with this shift. There appears to be limited public knowledge and understanding of same-sex sexual orientation and people whose gender identity and expression are incongruent with their biological sex. As a result of this approach, such persons are socially excluded from the mainstream of the society and they are denied equal access to those fundamental rights and freedoms that the other people enjoy freely.(See, Hijras/Transgender Women in India: HIV, Human Rights and Social Exclusion, UNDP report on India Issue: December, 2010).

112. Some of the common and reported problem that transgender most commonly suffer are: harassment by the police in public places, harassment at home, police entrapment, rape, discriminations, abuse in public places et.al. The other major problems that the transgender people face in their daily life are discrimination, lack of educational facilities, lack of medical facilities, homelessness, unemployment, depression, hormone pill abuse, tobacco and alcohol abuse, and problems related to marriage and adoption. In spite of the adoption of Universal Declaration of Human Rights (UDHR) in the year 1948, the inherent dignity, equality, respect and rights of all human beings throughout the world, the transgender are denied basic human rights. This denial is premised on a prevalent juridical assumption that the law should target discrimination based on sex (i.e., whether a person is anatomically male or female), rather than gender (i.e., whether a person has qualities that society consider masculine or feminine (Katherine M.Franke, The Central Mistake of Sex Discrimination Law: the Disaggregation of Sex from Gender, 144 U.Pa.Rev.1,3 (1995) (arguing that by defining sex in biological terms, the law has failed to distinguish sex from gender, and sexual differentiation from sex discrimination).

Transgender people are generally excluded from the society and people think transgenderism as a medical disease. Much like the disability, which in earlier times was considered as an illness but later on looked upon as a right based approach. The question whether transgenderism is a disease is hotly debated in both the transgender and medical-psychiatric communities.

But a prevalent view regarding this is that transgenderism is not a disease at all, but a benign normal variant of the human experience akin to left- handedness.

113. Therefore, gender identification becomes very essential component which is required for enjoying civil rights by this community. It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on.

114. Further, there seems to be no reason why a transgender must be denied of basic human rights which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression, Right to Education and Empowerment, Right against violence, Right against Exploitation and Right against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders. Now it’s time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition that TG as third gender.

115. In order to translate the aforesaid rights of TGs into reality, it becomes imperative to first assign them their proper ‘sex’. As is stated earlier, at the time of birth of a child itself, sex is assigned. However, it is either male or female. In the process, the society as well as law, has completely ignored the basic human right of TGs to give them their appropriate sex categorization. Up to now, they have either been treated as male or female. This is not only improper as it is far from truth, but indignified to these TGs and violates their human rights.

116. Though there may not be any statutory regime recognizing ‘third gender’ for these TGs. However, we find enough justification to recognize this right of theirs in natural law sphere. Further, such a justification can be traced to the various provisions contained in Part III of the Constitution relating to ‘Fundamental Rights’. In addition to the powerful justification accomplished in the accompanying opinion of my esteemed Brother, additional raison d’etre for this conclusion is stated hereinafter.

117. We are in the age of democracy, that too substantive and liberal democracy. Such a democracy is not based solely on the rule of people through their representatives’ namely formal democracy. It also has other percepts like Rule of Law, human rights, independence of judiciary, separation of powers etc.

118. There is a recognition to the hard realty that without protection for human rights there can be no democracy and no justification for democracy. In this scenario, while working within the realm of separation of powers (which is also fundamental to the substantive democracy), the judicial role is not only to decide the dispute before the Court, but to uphold the rule of law and ensure access to justice to the marginalized section of the society. It cannot be denied that TGs belong to the unprivileged class which is a marginalized section.

119. The role of the Court is to understand the central purpose and theme of the Constitution for the welfare of the society. Our Constitution, like the law of the society, is a living organism. It is based on a factual and social realty that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. Sometimes, a change in the law is the result in the social realty. When we discuss about the rights of TGs in the constitutional context, we find that in order to bring about complete paradigm shift, law has to play more pre-dominant role. As TGs in India, are neither male nor female, treating them as belonging to either of the aforesaid categories, is the denial of these constitutional rights. It is the denial of social justice which in turn has the effect of denying political and economic justice.

120. In Dattatraya Govind Mahajan vs. State of Maharashtra (AIR 1977 SC 915) this Court observed:

“Our Constitution is a tryst with destiny, preamble with luscent solemnity in the words ‘Justice – social, economic and political.’ The three great branches of Government, as creatures of the Constitution, must remember this promise in their fundamental role and forget it at their peril, for to do so will be a betrayal of chose high values and goals which this nation set for itself in its objective Resolution and whose elaborate summation appears in Part IV of the Paramount Parchment. The history of our country’s struggle for independence was the story of a battle between the forces of socio-economic exploitation and the masses of deprived people of varying degrees and the Constitution sets the new sights of the nation….Once we grasp the dharma of the Constitution, the new orientation of the karma of adjudication becomes clear. Our founding fathers, aware of our social realities, forged our fighting faith and integrating justice in its social, economic and political aspects. While contemplating the meaning of the Articles of the Organic Law, the Supreme Court shall not disown Social Justice.” 121. Oliver Wendlle Holmes said: “the life of law has been logical; it has been experience”. It may be added that ‘the life of law is not just logic or experience. The life of law is renewable based on experience and logic, which adapted law to the new social realty’. Recognizing this fact, the aforesaid provisions of the Constitution are required to be given new and dynamic meaning with the inclusion of rights of TGs as well. In this process, the first and foremost right is to recognize TGs as ‘third gender’ in law as well. This is a recognition of their right of equality enshrined in Art.14 as well as their human right to life with dignity, which is the mandate of the Art.21 of the Constitution. This interpretation is in consonance with new social needs. By doing so, this Court is only bridging the gap between the law and life and that is the primary role of the Court in a democracy. It only amounts to giving purposive interpretation to the aforesaid provisions of the Constitution so that it can adapt to the changes in realty. Law without purpose has no raison d’etre. The purpose of law is the evolution of a happy society. As Justice Iyer has aptly put:

“The purpose of law is the establishment of the welfare of society “and a society whose members enjoy welfare and happiness may be described as a just society. It is a negation of justice to say that some members, some groups, some minorities, some individuals do not have welfare: on the other hand they suffer from ill-fare. So it is axiomatic that law, if it is to fulfil itself, must produce a contented, dynamic society which is at once meting out justice to its members.” 122. It is now very well recognized that the Constitution is a living character; its interpretation must be dynamic. It must be understood in a way that intricate and advances modern realty. The judiciary is the guardian of the Constitution and by ensuring to grant legitimate right that is due to TGs, we are simply protecting the Constitution and the democracy inasmuch as judicial protection and democracy in general and of human rights in particular is a characteristic of our vibrant democracy.

123. As we have pointed out above, our Constitution inheres liberal and substantive democracy with rule of law as an important and fundamental pillar. It has its own internal morality based on dignity and equality of all human beings. Rule of law demands protection of individual human rights. Such rights are to be guaranteed to each and every human being.

These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.

124. In National Human Rights Commission vs. State of Arunachal Pradesh [1996] INSC 36; (AIR 1996 SC 1234), This Court observed:

“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws.” 125. The rule of law is not merely public order. The rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to life in dignity and development himself. The human being and human rights underlie this substantive perception of the rule of law, with a proper balance among the different rights and between human rights and the proper needs of society. The substantive rule of law “is the rule of proper law, which balances the needs of society and the individual.” This is the rule of law that strikes a balance between society’s need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. It is the duty of the Court to protect this rich concept of the rule of law.

126. By recognizing TGs as third gender, this Court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is, therefore, the only just solution which ensures justice not only to TGs but also justice to the society as well. Social justice does not mean equality before law in papers but to translate the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy into action, whose arms are long enough to bring within its reach and embrace this right of recognition to the TGs which legitimately belongs to them.

127. Aristotle opined that treating all equal things equal and all unequal things unequal amounts to justice. Kant was of the view that at the basis of all conceptions of justice, no matter which culture or religion has inspired them, lies the golden rule that you should treat others as you would want everybody to treat everybody else, including yourself. When Locke conceived of individual liberties, the individuals he had in mind were independently rich males. Similarly, Kant thought of economically self- sufficient males as the only possible citizens of a liberal democratic state. These theories may not be relevant in today’s context as it is perceived that the bias of their perspective is all too obvious to us. In post-traditional liberal democratic theories of justice, the background assumption is that humans have equal value and should, therefore, be treated as equal, as well as by equal laws. This can be described as ‘Reflective Equilibrium’. The method of Reflective Equilibrium was first introduced by Nelson Goodman in ‘Fact, Fiction and Forecast’ (1955).

However, it is John Rawls who elaborated this method of Reflective Equilibrium by introducing the conception of ‘Justice as Fairness’. In his ‘Theory of Justice’, Rawls has proposed a model of just institutions for democratic societies. Herein he draws on certain pre-theoretical elementary moral beliefs (‘considered judgments’), which he assumes most members of democratic societies would accept. “[Justice as fairness […] tries to draw solely upon basic intuitive ideas that are embedded in the political institutions of a constitutional democratic regime and the public traditions of their interpretations. Justice as fairness is a political conception in part because it starts from within a certain political tradition. Based on this preliminary understanding of just institutions in a democratic society, Rawls aims at a set of universalistic rules with the help of which the justice of present formal and informal institutions can be assessed. The ensuing conception of justice is called ‘justice as fairness’. When we combine Rawls’s notion of Justice as Fairness with the notions of Distributive Justice, to which Noble Laureate Prof. Amartya Sen has also subscribed, we get jurisprudential basis for doing justice to the Vulnerable Groups which definitely include TGs. Once it is accepted that the TGs are also part of vulnerable groups and marginalized section of the society, we are only bringing them within the fold of aforesaid rights recognized in respect of other classes falling in the marginalized group.

This is the minimum riposte in an attempt to assuage the insult and injury suffered by them so far as to pave way for fast tracking the realization of their human rights.

128. The aforesaid, thus, are my reasons for treating TGs as ‘third gender’ for the purposes of safeguarding and enforcing appropriately their rights guaranteed under the Constitution. These are my reasons in support of our Constitution to the two issues in these petitions.

……………..J.

(A.K.Sikri) 129. We, therefore, declare:

(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

(4) Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health issues.

(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.

(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.

(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

130. We are informed an Expert Committee has already been constituted to make an in-depth study of the problems faced by the Transgender community and suggest measures that can be taken by the Government to ameliorate their problems and to submit its report with recommendations within three months of its constitution. Let the recommendations be examined based on the legal declaration made in this Judgment and implemented within six months.

131. Writ Petitions are, accordingly, allowed, as above.

…..………………………J.
(K.S. Radhakrishnan)
………………………….J.
(A.K. Sikri)

New Delhi,
April 15, 2014.

The post National Legal Services Authority vs. Union of India and Ors. appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 55 OF 2013
Shatrughan Chauhan & Anr. …. Petitioner (s)
Versus
Union of India & Ors. ….Respondent(s)
WITH
WRIT PETITION (CRIMINAL) NO. 34 OF 2013
WRIT PETITION (CRIMINAL) NO. 56 OF 2013
WRIT PETITION (CRIMINAL) NO. 136 OF 2013
WRIT PETITION (CRIMINAL) NO. 139 OF 2013
WRIT PETITION (CRIMINAL) NO. 141 OF 2013
WRIT PETITION (CRIMINAL) NO. 132 OF 2013
WRIT PETITION (CRIMINAL) NO. 187 OF 2013
WRIT PETITION (CRIMINAL) NO. 188 OF 2013
WRIT PETITION (CRIMINAL) NO. 190 OF 2013
WRIT PETITION (CRIMINAL) NO. 191 OF 2013
WRIT PETITION (CRIMINAL) NO. 192 OF 2013
WRIT PETITION (CRIMINAL) NO. 193 OF 2013

J U D G M E N T

P.Sathasivam, CJI.

1) Our Constitution is highly valued for its articulation. One such astute drafting is Article 21 of the Constitution which postulates that every human being has inherent right to life and mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Over the span of years, this Court has expanded the horizon of ‘right to life’ guaranteed under the Constitution to balance with the progress of human life. This case provides yet another momentous occasion, where this Court is called upon to decide whether it will be in violation of Article 21, amongst other provisions, to execute the levied death sentence on the accused notwithstanding the existence of supervening circumstances. Let us examine the supervening circumstances of each individual case to arrive at a coherent decision.

2) All the above writ petitions, under Article 32 of the Constitution of India, have been 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 mercy petitions by the Governor and the President of India.

3) In all the writ petitions, the main prayer consistently relates to the issuance of a writ of declaration declaring that execution of sentence of death pursuant to the rejection of the mercy petitions by the President of India is unconstitutional and to set aside the death sentence imposed upon them by commuting the same to imprisonment for life. Further, it is also prayed for declaring the order passed by the Governor/President of India rejecting their respective mercy petitions as illegal and unenforceable. In view of the similarity of the reliefs sought for in all the writ petitions, we are not reproducing every prayer hereunder, however, while dealing with individual claims, we shall discuss factual details, the reliefs sought for and the grounds urged in support of their claim at the appropriate place. Besides, in the writ petition filed by PUDR, PUDR prayed for various directions in respect of procedure to be followed while considering the mercy petitions, and in general for protection of rights of the death row convicts. We shall discuss discretely the aforesaid prayers in the ensuing paragraphs.

4) Heard Mr. Ram Jethmalani, Mr. Anand Grover, Mr. R. Basant, Mr. Colin Gonsalves, learned senior counsel and Dr. Yug Mohit Chaudhary, learned counsel for the petitioners and Mr. Mohan Parasaran, learned Solicitor General, Mr. L.N. Rao, Mr. Siddharth Luthra, learned Additional Solicitor Generals, Mr. V.C. Mishra, learned Advocate General, Mr. V.N. Raghupathy, Ms. Anitha Shenoy, Mr. Rajiv Nanda, Mr. C.D. Singh, learned counsel and Mr.

Manjit Singh, Additional Advocate General for the respondents. We also heard Mr. T.R. Andhyarujina, learned senior counsel as amicus curiae.

5) Before considering the merits of the claim of individual case, it is essential to deliberate on certain vital points of law that will be incidental and decisive for determining the case at hand.

Maintainability of the Petitions 6) Before we advert to the issue of maintainability of the petitions, it is pertinent to grasp the significance of Article 32 as foreseen by Dr.

Ambedkar, the principal architect of the Indian Constitution. His words were appositely reiterated in Minerva Mills Ltd. and Ors. vs. Union of India and Ors. (1980) 2 SCC 625 as follows:- “87. …If I was asked to name any particular Article in this Constitution as the most important – an Article without which this Constitution would be a nullity – I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it.” (emphasis supplied) The fundamental right to move this Court can, therefore, be appropriately described as the corner-stone of the democratic edifice raised by the Constitution. At the same time, this Court, in A.R Antulay vs. Union of India (1988) 2 SCC 602, clarified and pronounced that any writ petition under Article 32 of the Constitution challenging the validity of the order or judgment passed by this Court as nullity or otherwise incorrect cannot be entertained. In this light, let us examine the maintainability of these petitions.

7) The aforesaid petitions, under Article 32 of the Constitution, seek 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.

8) At the outset, the petitioners herein justly elucidated that they are not challenging the final verdict of this Court wherein death sentence was imposed. In fact, they asserted in their respective petitions that if the sentence had been executed then and there, there would have been no grievance or cause of action. However, it wasn’t and the supervening events that occurred after the final confirmation of the death sentence are the basis of filing these petitions.

9) It is a time-honored principle, as stipulated in R.D Shetty vs.

International Airport Authority [1979] INSC 111; (1979) 3 SCC 489, that no matter, whether the violation of fundamental right arises out of an executive action/inaction or action of the legislature, Article 32 can be utilized to enforce the fundamental rights in either event. In the given case, the stand of the petitioners herein is that exercise of the constitutional power vested in the executive specified under Article 72/161 has violated the fundamental rights of the petitioners herein. This Court, as in past, entertained the petitions of the given kind and issued appropriate orders as in T.V. Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC 68, Sher Singh and Ors. vs. State of Punjab (1983) 2 SCC 344 Triveniben vs. State of Gujarat (1988) 4 SCC 574 etc. Accordingly, we accede to the stand of the petitioners and hold that the petitions are maintainable.

Nature of power guaranteed under Article 72/161 of the Constitution 10) It is apposite to refer the relevant Articles which give power to the President of India and the Governor to grant pardons and to suspend, remit or commute sentences in certain cases. They are as follows:

“Article 72. Power of President to grant pardons, etc. and to suspend, remit or commute sentences in certain cases – (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence – a) in all cases where the punishment or sentence is by a Court Martial;

b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

c) in all cases where the sentence is a sentence of death.

2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court martial.

3) Nothing in sub-clause of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State, under any law for the time being in force.” Article 161. Power of Governor to grant pardons, etc. and to suspend, remit or commute sentences in certain cases – The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.” 11) The memoir and scope of Article 72/161 of the Constitution was extensively considered in Kehar Singh vs. Union of India & Anr., (1989) 1 SCC 204 in the following words:

“7. The Constitution of India, in keeping with modern constitutional practice, is a constitutive document, fundamental to the governance of the country, whereby, according to accepted political theory, the people of India have provided a constitutional polity consisting of certain primary organs, institutions and functionaries to exercise the powers provided in the Constitution. All power belongs to the people, and it is entrusted by them to specified institutions and functionaries with the intention of working out, maintaining and operating a constitutional order. The Preambular statement of the Constitution begins with the significant recital:

We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic…

do hereby adopt, enact and give to ourselves this Constitution.

To any civilized society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State. In England, the power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, however, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme. In an opinion, remarkable for its erudition and clarity, Mr Justice Holmes, speaking for the Court in W.I. Biddle v. Vuco Perovich [1927] USSC 134; 71 L Ed 1161) enunciated this view, and it has since been affirmed in other decisions. The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned Counsel, Shri Ram Jethmalani and Shri Shanti Bhushan, appearing for the Petitioner that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) of the Constitution, must act in accordance with such advice….” (Emphasis Supplied) In that case, the Constitution Bench also considered whether the President can, in exercise of the power under Article 72 of the Constitution, scrutinize the evidence on record and come to a different conclusion than the one arrived at by the Court and held as under:

“10. We are of the view that it is open to the President in the exercise of the power vested in him by Article 72 of the Constitution to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed.

The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. and this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him….

The legal effect of a pardon is wholly different from a judicial supersession of the original sentence. It is the nature of the power which is determinative….

It is apparent that the power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court.

16. ..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.” 12) 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 be, in exercise of power under Article 72/161 respectively, may examine the evidence afresh and this exercise of power is clearly independent of the judiciary. This Court, in numerous instances, clarified that the executive is not sitting as a court of appeal rather the power of President/Governor to grant remission of sentence is an act of grace and humanity in appropriate cases, i.e., distinct, absolute and unfettered in its nature.

13) In this context, the deliberations in Epuru Sudhakar & Anr. vs. Govt.

of A.P. & Ors., (2006) 8 SCC 161 are relevant which are as under:

“16. The philosophy underlying the pardon power is that “every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy.

[See 59 American Jurisprudence 2d, page 5]

17. The rationale of the pardon power has been felicitously enunciated by the celebrated Justice Holmes of the United States Supreme Court in the case of Biddle v. Perovich in these words 71 L.

Ed. 1161 at 1163: A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” (emphasis added) 14) Article 72/161 of the Constitution entail remedy to all the convicts and not limited to only death sentence cases and must 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.

15) Shri Andhyarujina, learned senior counsel, who assisted the Court as amicus commenced his submissions by pointing out that the power reposed in the President under Article 72 and the Governor under Article 161 of the Constitution is not a matter of grace or mercy, but is a constitutional duty of great significance and the same has to be exercised with great care and circumspection keeping in view the larger public interest. He referred to the judgment of the U.S. Supreme Court in Biddle vs. Perovoch [1927] USSC 134; 274 US 480 as also the judgments of this Court in Kehar Singh (supra) and Epuru Sudhakar (supra).

16) In this context, in Kuljeet Singh vs. Lt. Governor (1982) 1 SCC 417, this Court held:

“1. The question as regards the scope of the power of the President under Article 72 of the Constitution to commute a sentence of death into a lesser sentence may have to await examination on an appropriate occasion. This clearly is not that occasion because insofar as this case is concerned, whatever be the guide-lines observed for the exercise of the power conferred by Article 72, the only sentence which can possibly be imposed upon the petitioner is that of death and no circumstances exist for interference with that sentence. Therefore we see no justification for saying that in refusing to commute the sentence of death imposed upon the petitioner into a lesser sentence, the President has in any manner transgressed his discretionary power under Article 72. Undoubtedly, the President has the power in an appropriate case to commute any sentence imposed by a court into a lesser sentence and as said by Chief Justice Taft in James Shewan and Sons v. U.S., the “executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law” and that the administration of justice by the courts is not necessarily or certainly considerate of circumstances which may properly mitigate guilt. But the question as to whether the case is appropriate for the exercise of the power conferred by Article 72 depends upon the facts and circumstances of each particular case. The necessity or the justification for exercising that power has therefore to be judged from case to case. In fact, we do not see what useful purpose will be achieved by the petitioner by ensuring the imposition of any severe, judicially evolved constraints on the wholesome power of the President to use it as the justice of a case may require. After all, the power conferred by Article 72 can be used only for the purpose of reducing the sentence, not for enhancing it. We need not, however, go into that question elaborately because insofar as this case is concerned, we are quite clear that not even the most liberal use of his mercy jurisdiction could have persuaded the President to interfere with the sentence of death imposed upon the petitioner, in view particularly of the considerations mentioned by us in our judgment in Kuljeet Singh v. Union of India. We may recall what we said in that judgment that “the death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamp”, that the “survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security”, and that “they are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a mature society.” 17) In concise, the power vested 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 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.

Limited Judicial Review of the executive orders under Article 72/161 18) As already emphasized, the power of the executive to grant pardon under Article 72/161 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 vs.

Union of India (2004) 7 SCC 634. 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. In this context, in Epuru Sudhakar (supra), this Court held thus:

“36. So far as desirability to indicate guidelines is concerned in Ashok Kumar case it was held as follows: (SCC pp. 518-19, para 17) “17. In Kehar Singh case on the question of laying down guidelines for the exercise of power under Article 72 of the Constitution this Court observed in para 16 as under: (SCC pp. 217-18, para 16) ‘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.’ These observations do indicate that the Constitution Bench which decided Kehar Singh case 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 72/161 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.” 19) Nevertheless, this Court has been of the consistent view that the executive orders under Article 72/161 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. Accordingly, there is no dispute as to the settled legal proposition that the power exercised under Article 72/161 could be the subject matter of limited judicial review. [vide Kehar Singh (supra); Ashok Kumar (supra); Swaran Singh vs. State of U.P AIR 1998 SC 2026; Satpal and Anr. vs. State of Haryana and Ors. AIR 2000 SC 1702; and Bikas Chatterjee (supra)] 20) Though the contours of power under Article 72/161 have not been defined, this Court, in Narayan Dutt vs. State of Punjab (2011) 4 SCC 353, para 24, has held that the exercise of power is subject to challenge on the following grounds:

a) If the Governor had been found to have exercised the power himself without being advised by the government;

b) If the Governor transgressed his jurisdiction in exercising the said power;

c) If the Governor had passed the order without applying his mind;

d) The order of the Governor was mala fide; or e) The order of the Governor was passed on some extraneous considerations.

These propositions are culmination of views settled by this Court that:

i) Power should not be exercised malafidely. (Vide Maru Ram vs.

Union of India, paras 62, 63 & 65).

ii) No political considerations behind exercise of power. In this context, in Epuru Sudhakar (supra), this Court held thus:

“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.

35. Two important aspects were also highlighted by learned amicus curiae; one relating to the desirability of indicating reasons in the order granting pardon/remission while the other was an equally more important question relating to power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration. According to learned amicus curiae, reasons are to be indicated, in the absence of which the exercise of judicial review will be affected.

37. In Kehar Singh case this Court held that: (SCC p. 216, para 13) “There is also no question involved in this case of asking for the reasons for the President’s order.”

38. The same obviously means that the affected party need not be given the reasons. The question whether reasons can or cannot be disclosed to the Court when the same is challenged was not the subject-matter of consideration. In any event, the absence of any obligation to convey the reasons does not mean that there should not be legitimate or relevant reasons for passing the order.” 21) A perusal of the above case-laws 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.

22) It is the claim of the petitioners herein that the impugned executive orders of rejection of mercy petitions against 15 accused persons were passed without considering the supervening events which are crucial for deciding the same. The legal basis for taking supervening circumstances into account is that Article 21 inheres a right in every prisoner till his last breath and this Court will protect that right even if the noose is being tied on the condemned prisoner’s neck. [vide Sher Singh (supra), Triveniben (supra), Vatheeswaran (supra), Jagdish vs. State of Madhya Pradesh (2009) 9 SCC 495].

23) Certainly, delay is one of the permitted grounds for limited judicial review as stipulated in the stare decisis. Henceforth, we shall scrutinize the claim of the petitioners herein and find out the effect of supervening circumstances in the case on hand.

Supervening Circumstances 24) The petitioners herein have asserted the following events as the supervening circumstances, for commutation of death sentence to life imprisonment.

i) Delay ii) Insanity iii) Solitary Confinement iv) Judgments declared per incuriam v) Procedural Lapses 25) All the petitioners have more or less asserted on the aforesaid grounds which, in their opinion, the executive had failed to take note of while rejecting the mercy petitions filed by them. Let us discuss them distinctively and come to a conclusion whether each of the circumstances exclusively or together warrants the commutation of death sentence into life imprisonment.

(i) Delay 26) It is pre-requisite to comprehend the procedure adopted under Article 72/161 for processing the mercy petition so that we may be in a position to appreciate the aspect of delay as one of the supervening circumstances.

27) The death row convicts invariably approached the Governor under Article 161 of the Constitution of India with a mercy petition after this Court finally decided the matter. During the pendency of the mercy petition, the execution of death sentence was 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 one or two pages giving grounds for mercy. To examine the mercy petition so received and to arrive at a conclusion, the documents like copy of the judgments of the trial Court, High Court and the Supreme Court are requested from the State Government. The other documents required include details of the decision taken by the Governor under Article 161 of the Constitution, 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 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 the claim of the Union of India that these documents are then extensively examined and in 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. It is the claim of the respondents that there cannot be a specific time limit for examination of mercy petitions.

28) It is also the claim of the respondents that Article 72 envisages no limit as to time within which the mercy petition is to be disposed of by the President of India. Accordingly, it is contended that since no time limit is prescribed for the President under Article 72, the courts may not go into it or fix any outer limit. It is also contended that the power of the President under Article 72 is discretionary which cannot be taken away by any statutory provision and cannot be altered, modified or interfered with, in any manner, whatsoever, by any statutory provision or authority.

The powers conferred on the President are special powers overriding all other laws, rules and regulations in force. Delay by itself does not entail the person under sentence of death to request for commutation of sentence into life imprisonment.

29) It is also pointed out that 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. It is also brought to our notice that as per List II Entry 4 of the Seventh Schedule to the Constitution of India, “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 jail manual/rules etc.

30) On the contrary, it is the plea of the petitioners that after exhausting of the proceedings in the courts of law, the aggrieved convict gets right to make a mercy petition before the Governor and the President of India highlighting his grievance. If there is any undue, unreasonable and prolonged delay in disposal of his mercy petition, the convict is entitled to approach this Court by way of a writ petition under Article 32 of the Constitution. It is vehemently asserted that the execution of death penalty in the face of such an inordinate delay would infringe fundamental right to life under Article 21 of the Constitution, which would invite the exercise of the jurisdiction by this Court.

31) 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 deprived of his life and liberty except in accordance with the procedure established by law. According to learned counsel for the Union of India, death sentence is imposed on a person found guilty of an offence of heinous nature after adhering to the due procedure established by law which is subject to appeal and review. Therefore, delay in execution must not be a ground for commutation of sentence of such a heinous crime. On the other hand, the argument of learned counsel for the petitioners/death convicts is that human life is sacred and inviolable and every effort should be made to protect it. Therefore, inasmuch as Article 21 is available to all the persons including convicts and continues till last breath if they establish and prove the supervening circumstances, viz., undue delay in disposal of mercy petitions, undoubtedly, this Court, by virtue of power under Article 32, can commute the death sentence into imprisonment for life. As a matter of fact, it is the stand of the petitioners that in a petition filed under Article 32, even without a presidential order, if there is unexplained, long and inordinate delay in execution of death sentence, the grievance of the convict can be considered by this Court.

32) This Court is conscious of the fact, namely, 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 sentencing process as well. The right of a victim to a fair investigation under Article 21 has been recognized in State of West Bengal vs. Committee for Democratic Rights, West Bengal, (2010) 3 SCC 571, which is as under:

“68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows:

(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.

(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State..” We do comprehend the critical facet involved in the arguments by both the sides and we will strive to strike a balance between the rights of the accused as well as of the victim while deciding the given case.

33) This is not the first time when the question of such a nature is raised before this Court. In Ediga Anamma vs. State of A.P., 1974(4) SCC 443 Krishna Iyer, J. spoke of the “brooding horror of haunting the prisoner in the condemned cell for years”. Chinnappa Reddy, J. in Vatheeswaran (supra) said that prolonged delay in execution of a sentence of death had a dehumanizing effect and this had the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the fundamental right under Article 21 of the Constitution.

Chinnappa Reddy, J. quoted the Privy Council’s observation in a case of such an inordinate delay in execution, viz., “The anguish of alternating hope and despair the agony of uncertainty and the consequences of such suffering on the mental, emotional and physical integrity and health of the individual has to be seen.” Thereby, a Bench of two Judges of this Court held that the delay of two years in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to plead for commutation of sentence of death to imprisonment for life.

Subsequently, in Sher Singh (supra), which was a decision of a Bench of three Judges, it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is not good enough for commutation and two years’ rule could not be laid down in cases of delay.

34) Owing to the conflict in the two decisions, the matter was referred to a Constitution Bench of this Court for deciding the two questions of law viz., (i) whether the delay in execution itself will be a ground for commutation of sentence and (ii) whether two years’ delay in execution will automatically entitle the condemned prisoner for commutation of sentence.

In Smt. Triveniben vs. State of Gujarat (1988) 4 SCC 574, this Court held thus:

“2. ….Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the court while finally maintaining the sentence of death. This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran case cannot be said to lay down the correct law and therefore to that extent stands overruled.” 35) While giving full reasons which is reported in Smt. Triveniben vs.

State of Gujarat[1989] INSC 44; , (1989) 1 SCC 678 this Court, in para 22, appreciated the aspect of delay in execution in the following words:- “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 and also in A.R. Antulay v. R.S. Nayak 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.” 36) Though learned counsel appearing for the Union of India relied on certain observations of Shetty, J. who delivered concurring judgment, particularly, para 76, holding that “the inordinate delay, may be a significant factor, but that by itself cannot render the execution unconstitutional”, after careful reading of the majority judgment authored by Oza, J., particularly, para 2 of the order dated 11.10.1988 and para 22 of the subsequent order dated 07.02.1989, we reject the said stand taken by learned counsel for the Union of India.

37) In Vatheeswaran (supra), the dissenting opinion of the two judges in the Privy Council case, relied upon by this Court, was subsequently accepted as the correct law by the Privy Council in Earl Pratt vs. AG for Jamaica [1993] UKPC 37; [1994] 2 AC 1 – Privy Council, after 22 years. There is no doubt that judgments of the Privy Council have certainly received the same respectful consideration as the judgments of this Court. For clarity, we reiterate that except the ratio relating to delay exceeding two years in execution of sentence of death, all other propositions are acceptable, in fact, followed in subsequent decisions and should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and plead for commutation of the sentence.

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.

39) 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 and psychological stresses on the convict under sentence of death. Indisputably, this Court, while 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.

40) 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 punishment. Pursuant to the judgment of this Court in Vishaka vs. State of Rajasthan, (1997) 6 SCC 241, international covenants to which India is a party are a part of domestic law unless they are contrary to a specific law in force. It is this expression (“cruel and degrading treatment and/or punishment”) which has ignited the philosophy of Vatheeswaran (supra) and the cases which follow it. It is in this light, the Indian cases, particularly, the leading case of Triveniben (supra) has been followed in the Commonwealth countries. It is useful to refer the following foreign judgments which followed the proposition :

i) Earl Pratt vs. AG for Jamaica [1993] UKPC 37; [1994] 2 AC 1 – Privy Council ii) Catholic Commission for Justice & Peace in Zimbabwe vs. Attorney General, 1993 (4) S.A. 239 – Supreme Court of Zimbabwe iii) Soering vs. United Kingdom [App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989)] – European Court of Human Rights iv) Attorney General vs. Susan Kigula, Constitutional Appeal No. 3 of 2006 – Supreme Court of Uganda v) Herman Mejia and Nicholas Guevara vs. Attorney General, A.D. 2000 Action No. 296 – Supreme Court of Belize.

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 amd 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.

43) 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, 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 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 sentence. In fact, in Vatheeswaran (supra), particularly, in para 10, it was elaborated where amongst other authorities, the minority view of Lords Scarman and Brightman in the 1972 Privy Council case of Noel Noel Riley vs. Attorney General, (1982) Crl.Law Review 679 by quoting “sentence of death is one thing, sentence of death followed by lengthy imprisonment prior to execution is another”. The appropriate relief in cases where the execution of death sentence is delayed, the Court held, is to vacate the sentence of death. In para 13, the Court made it clear that Articles 14, 19 and 21 supplement one another and the right which was spelled out from the Constitution was a substantive right of the convict and not merely a matter of procedure established by law. This was the consequence of the judgment in Maneka Gandhi vs. Union of India (1978) 1 SCC 248 which made the content of Article 21 substantive as distinguished from merely procedural.

44) Another argument advanced by learned ASG is that even if the delay caused seems to be undue, the matter must be referred back to the executive and a decision must not be taken in the judicial side. Though we appreciate the contention argued by the learned ASG, we are not inclined to accept the argument. The concept of supervening events emerged from the jurisprudence set out in Vatheeswaran (supra) and Triveniben (supra). 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 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.

45) At this juncture, it is pertinent to refer the records of the disposal of mercy petitions compiled by Mr. Bikram Jeet Batra and others, which are attached as annexures in almost all the petitions herein. At the outset, this document reveals that the mercy petitions were disposed of more expeditiously in former days than in the present times. Mostly, until 1980, the mercy petitions were decided in minimum of 15 days and in maximum of 10-11 months. Thereafter, from 1980 to 1988, the time taken in disposal of mercy petitions was gradually increased to an average of 4 years. It is exactly at this point of time, the cases like Vatheeswaran (supra) and Triveniben (supra) were decided which gave way for developing the jurisprudence of commuting the death sentence based on undue delay. It is also pertinent to mention that this Court has observed in these cases that when such petitions under Article 72 or 161 are received by the authorities concerned, it is expected that these petitions shall be disposed of expeditiously. In Sher Singh (supra) their Lordships have also impressed the Government of India and all the State Governments for speedy disposal of petitions filed under Articles 72 and 161 and issued directions in the following manner:

“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.

46) Obviously, the mercy petitions disposed of from 1989 to 1997 witnessed the impact of the observations in the disposal of mercy petitions. Since the 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 itself as now the delay of maximum 12 years is seen in disposing of the mercy petitions under Article 72/161 of the Constitution.

47) We sincerely hope and believe that 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 followed in verbatim. Although, no time frame can be set for the President for disposal of the mercy petition but we can certainly request the concerned Ministry to follow its own rules rigorously which can reduce, to a large extent, the delay caused.

48) 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.

• 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;

• 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 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.

49) These guidelines and the scope of the power set out above make it clear that it is an extraordinary power not limited by judicial determination of the case and is not to be exercised lightly or as a matter of course. We also suggest, 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 constitutional authorities are made aware of the delay caused at their end which aspect has to be considered 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 (supra), delays in the judicial process are accounted for in the final verdict of the Court terminating the judicial exercise.

50) Another vital aspect, without mention of which the present discussion will not be complete, is that, as aforesaid, Article 21 is the 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 respondents that the commutation of sentence of death based on delay alone will be against the victim’s interest.

51) 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 consideration in determining the appropriate sentence. The object of punishment is lucidly elaborated in Ram Narain vs. State of Uttar Pradesh [1973] INSC 75; (1973) 2 SCC 86 in the following words:- “8. ..the broad object of punishment of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crimes does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient….” 52) The object of punishment has been succinctly stated in Halsbury’s Laws of England, (4th Edition: Vol. II: para 482) thus:

“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 retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided.” 53) All these aspects were emphatically considered by this Court while pronouncing the final verdict against the petitioners herein thereby upholding the sentence of death imposed by the High Court. Nevertheless, the same accused (petitioners herein) are before us now under Article 32 petition seeking commutation of sentence on the basis of undue delay caused in execution of their levied death sentence, which amounts to torture and henceforth violative of Article 21 of the Constitution. We must clearly see the distinction under both circumstances. Under the former 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 seeking commutation of sentence.

This distinction must be considered and appreciated.

54) As already asserted, this Court has no jurisdiction under Article 32 to reopen the case on merits. Therefore, in the light of the aforesaid elaborate discussion, we are of the cogent view that undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence. However, the nature of delay i.e. whether it is undue or unreasonable must be appreciated based on the facts of individual cases and no exhaustive guidelines can be framed in this regard.

Rationality of Distinguishing between Indian Penal Code, 1860 And Terrorist and Disruptive Activities (Prevention) Act Offences for Sentencing Purpose 55) In Writ Petition No. 34 of 2013 – the accused were mulcted with TADA charges which ultimately ended in death sentence. Mr. Ram Jethmalani, learned senior counsel for the petitioners in that writ petition argued against the ratio laid down in Devender Pal Singh Bhullar vs. State (NCT) of Delhi (2013) 6 SCC 195 which holds that when the accused are convicted under TADA, there is no question of showing any sympathy or considering supervening circumstances for commutation of sentence, and emphasized the need for reconsideration of the verdict. According to Mr. Ram Jethmalani, Devender Pal Singh Bhullar (supra) is per incuriam and is not a binding decision for other cases. He also prayed that inasmuch as the ratio laid down in Devender Pal Singh Bhullar (supra) is erroneous, this Court, being a larger Bench, must overrule the same.

56) He pointed out that delay in execution of sentence of death after it has become final at the end of the judicial process is wholly unconstitutional inasmuch it constitutes torture, deprivation of liberty and detention in custody not authorized by law within the meaning of Article 21 of the Constitution. He further pointed out that this involuntary detention of the convict is an action not authorized by any penal provision including Section 302 IPC or any other law including TADA.

On the other hand, Mr. Luthra, learned ASG heavily relying on the reasonings in Devender Pal Singh Bhullar (supra) submitted that inasmuch as the crime involved is a serious and heinous and the accused were charged under TADA, there cannot be any sympathy or leniency even on the ground of delay in disposal of mercy petition. According to him, considering the gravity of the crime, death sentence is warranted and Devender Pal Singh Bhullar (supra) has correctly arrived at a conclusion and rejected the claim for commutation on the ground of delay.

57) 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 vs. State of Punjab (1980) 2 SCC 684 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.

58) As rightly pointed out by Mr. Ram Jethmalani, 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 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.

59) Now, in this background, let us consider the ratio laid down in Devender Pal Singh Bhullar (supra).

60) The brief facts of that case were: Devender Pal Singh Bhullar, who was convicted by the Designated Court at Delhi for various offences under TADA, IPC and was found guilty and sentenced to death. The appeal as well as the review filed by him was dismissed by this Court. Soon after the dismissal of the review petition, Bhullar submitted a mercy petition dated 14.01.2003 to the President of India under Article 72 of the Constitution and prayed for commutation of his sentence. Various other associations including Delhi Sikh Gurdwara Management Committee sent letters in connection with commutation of the death sentence awarded to him. During the pendency of the petition filed under Article 72, he also filed Curative Petition (Criminal) No. 5 of 2013 which was also dismissed by this Court on 12.03.2013. After prolonged correspondence and based on the advice of the Home Minister, the President rejected his mercy petition which was informed vide letter dated 13.06.2011 sent by the Deputy Secretary (Home) to the Jail Authorities. After rejection of his petition by the President, Bhullar filed a writ petition, under Article 32 of the Constitution, in this regard praying for quashing the communication dated 13.06.2011. While issuing notice in Writ Petition (Criminal) Diary No. 16039/2011, this Court directed the respondents to clarify as to why the petitions made by the petitioner had not been disposed of for the last 8 years. In compliance with the courts direction, the Deputy Secretary (Home) filed an affidavit giving reasons for the delay. This Court, after adverting to all the earlier decisions, instructions regarding procedure to be observed for dealing with the petitions for mercy, accepted that there was a delay of 8 years. Even after accepting that long delay may be one of the grounds for commutation of sentence of death into life imprisonment, this Court dismissed his writ petition on the ground that the same cannot be invoked in cases where a person is convicted for an offence under TADA or similar statutes. This Court also held that such cases stand on an altogether different footing and cannot be compared with murders committed due to personal animosity or over property and personal disputes. It is also relevant to point out that while arriving at such conclusion, the Bench heavily relied on opinion expressed by Shetty, J. in Smt. Triveniben (supra). Though the Bench adverted to paras 73, 74, 75 and 76 of Triveniben (supra), the Court very much emphasized para 76 which reads as under:- “76. .. The court while examining the matter, for the reasons already stated, cannot take into account the time utilised in the 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 by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself..” (emphasis supplied) 61) On going through the judgment of Oza, J. on his behalf and for M.M.

Dutt, K.N. Singh and L.M. Sharma, JJ., we are of the view that the above quoted statement of Shetty, J. is not a majority view and at the most this is a view expressed by him alone. In this regard, at the cost of repetition it is relevant to refer once again the operative portion of the order dated 11.10.1988 in Triveniben (supra) which is as under:- “2. We are of the opinion that:

Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the court while finally maintaining the sentence of death.

This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran case cannot be said to lay down the correct law and therefore to that extent stands overruled.” 62) 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 07.02.1989. In such circumstances and also in view of the categorical opinion of Oza, J. in para 22 of the judgment in Triveniben (supra) that “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..”, it cannot be held, as urged, on behalf of the Union of India that the majority opinion in Triveniben (supra) 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 (supra) 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 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 in Vatheeswaran (supra) and only to that extent overruled the same.

63) Incidentally, it is relevant to point out Mahendra Nath Das vs. Union of India and Ors. (2013) 6 SCC 253, wherein the very same bench, taking note of the fact that there was a delay of 12 years in the disposal of the mercy petition and also considering the fact that the appellants therein were prosecuted and convicted under Section 302 IPC held the rejection of the appellants’ mercy petition as illegal and consequently, the sentence of death awarded to them by the trial Court which was confirmed by the High Court, commuted into life imprisonment.

64) In the light of the same, we are of the view that the ratio laid down in Devender Pal Singh Bhullar (supra) is per incuriam. There is no dispute that in the same decision this Court has accepted the ratio enunciated in Triveniben (supra) (Constitution Bench) and also noted some other judgments following the ratio laid down in those cases that unexplained long delay may be one of the grounds for commutation of sentence of death into life imprisonment. There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence. Each case requires consideration on its own facts.

65) It is useful to refer a Constitution Bench decision of this Court in Mithu vs. State of Punjab [1983] INSC 37; (1983) 2 SCC 277, wherein this Court held Section 303 of the IPC as unconstitutional and declared it void. The question before the Constitution Bench was whether Section 303 of IPC infringes the guarantee contained in Article 21 of the Constitution, which provides that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. Chandrachud, J. the then Hon’ble the Chief Justice, speaking for himself, Fazal Ali, Tulzapurkar and Varadarajan, JJ., struck down Section 303 IPC as unconstitutional and declared it void. The Bench also held that all the cases of murder will now fall under Section 302 IPC and there shall be no mandatory sentence of death for the offence of murder. The reasons given by this Court for striking down this aforesaid section will come in aid for this case.

Section 303 IPC was as under:

“303. Punishment for murder by life convict.—Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.” 66) Before striking down Section 303 IPC, this Court made the following conclusion:

“3..The reason, or at least one of the reasons, why the discretion of the court to impose a lesser sentence was taken away and the sentence of death was made mandatory in cases which are covered by Section 303 seems to have been that if, even the sentence of life imprisonment was not sufficient to act as a deterrent and the convict was hardened enough to commit a murder while serving that sentence, the only punishment which he deserved was death. The severity of this legislative judgment accorded with the deterrent and retributive theories of punishment which then held sway. The reformative theory of punishment attracted the attention of criminologists later in the day.. 5..The sum and substance of the argument is that the provision contained in Section 303 is wholly unreasonable and arbitrary and thereby, it violates Article 21 of the Constitution which affords the guarantee that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law.

Since the procedure by which Section 303 authorises the deprivation of life is unfair and unjust, the Section is unconstitutional. Having examined this argument with care and concern, we are of the opinion that it must be accepted and Section 303 of the Penal Code struck down.” 67) After quoting Maneka Gandhi (supra), Sunil Batra vs. Delhi Administration [1978] INSC 148; (1978) 4 SCC 494 and Bachan Singh (supra), this Court opined:

“19..To prescribe a mandatory sentence of death for the second of such offences for the reason that the offender was under the sentence of life imprisonment for the first of such offences is arbitrary beyond the bounds of all reason. Assuming that Section 235(2) of the Criminal Procedure Code were applicable to the case and the court was under an obligation to hear the accused on the question of sentence, it would have to put some such question to the accused:

“You were sentenced to life imprisonment for the offence of forgery.

You have committed a murder while you were under that sentence of life imprisonment. Why should you not be sentenced to death” The question carries its own refutation. It highlights how arbitrary and irrational it is to provide for a mandatory sentence of death in such circumstances..”

23. On a consideration of the various circumstances which we have mentioned in this judgment, we are of the opinion that Section 303 of the Penal Code violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to procedure established by law. The section was originally conceived to discourage assaults by life convicts on the prison staff, but the legislature chose language which far exceeded its intention.

The Section also assumes that life convicts are a dangerous breed of humanity as a class. That assumption is not supported by any scientific data. As observed by the Royal Commission in its Report on “Capital Punishment” “There is a popular belief that prisoners serving a life sentence after conviction of murder form a specially troublesome and dangerous class. That is not so. Most find themselves in prison because they have yielded to temptation under the pressure of a combination of circumstances unlikely to recur.” In Dilip Kumar Sharma v. State of M.P. this Court was not concerned with the question of the vires of Section 303, but Sarkaria, J., in his concurring judgment, described the vast sweep of that Section by saying that “the section is Draconian in severity, relentless and inexorable in operation” [SCC para 22, p. 567: SCC (Cri) p. 92]. We strike down Section 303 of the Penal Code as unconstitutional and declare it void. It is needless to add that all cases of murder will now fall under Section 302 of the Penal Code and there shall be no mandatory sentence of death for the offence of murder.” 68) Chinnappa Reddy, J., concurring with the above view, held thus:

“25. Judged in the light shed by Maneka Gandhi and Bachan Singh, it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable [sic irresuscitable] is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional.” 69) It is clear that since Section 303 IPC excludes judicial discretion, the Constitution Bench has concluded that such a law must necessarily be stigmatized as arbitrary and oppressive. It is further clear that no one should be deprived of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution regarding his life or personal liberty except according to the procedure established by law.

70) Taking guidance from the above principles and in the light of the ratio enunciated in Triveniben (supra), 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 (supra).

(ii) Insanity/Mental Illness/Schizophrenia 71) In this batch of cases, two convict prisoners prayed for commutation of death sentence into sentence of life imprisonment on the ground that the unconscionably long delay in deciding the mercy petition has caused the onset of chronic psychotic illness, and in view of this the execution of death sentence will be inhuman and against the well-established canons of human rights.

72) The principal question raised in those petitions is whether because of the aforementioned supervening events after the verdict of this Court confirming the death sentence, the infliction of the most extreme penalty in the circumstances of the case, violates the fundamental rights under Article 21. The petitioners have made it clear that they are not challenging the death sentence imposed by this Court. However, as on date, they are suffering from insanity/mental illness. In this background, let us consider whether the petitioners have made out a case for commutation to life sentence on the ground of insanity.

73) India is a member of the United Nations and has ratified the International Covenant on Civil and Political 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 2000/65 dated 27.04.2000 of the U.N. Commission on Human Rights titled “The Question of Death Penalty” urges “all States that still maintain the death penalty..not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person”. It further elaborates:

“3. Urges all States that still maintain the death penalty:

(a) To comply fully with their obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, notably not to impose the death penalty for any but the most serious crimes and only pursuant to a final judgement rendered by an independent and impartial competent court, not to impose it for crimes committed by persons below 18 years of age, to exclude pregnant women from capital punishment and to ensure the right to a fair trial and the right to seek pardon or commutation of sentence;

(b) To ensure that the notion of “most serious crimes” does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non-violent financial crimes or for non-violent religious practice or expression of conscience;

(c) Not to enter any new reservations under article 6 of the International Covenant on Civil and Political Rights which may be contrary to the object and the purpose of the Covenant and to withdraw any such existing reservations, given that article 6 of the Covenant enshrines the minimum rules for the protection of the right to life and the generally accepted standards in this area;

(d) To observe the Safeguards guaranteeing protection of the rights of those facing the death penalty and to comply fully with their international obligations, in particular with those under the Vienna Convention on Consular Relations;

(e) Not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person;

(f) Not to execute any person as long as any related legal procedure, at the international or at the national level, is pending;

4. Calls upon all States that still maintain the death penalty:

(a) Progressively to restrict the number of offences for which the death penalty may be imposed;

(b) To establish a moratorium on executions, with a view to completely abolishing the death penalty;

(c) To make available to the public information with regard to the imposition of the death penalty;

5. Requests States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out;

6. Requests the Secretary-General to continue to submit to the Commission on Human Rights, at its fifty-seventh session, in consultation with Governments, specialized agencies and intergovernmental and non-governmental organizations, a yearly supplement on changes in law and practice concerning the death penalty worldwide to his quinquennial report on capital punishment and implementation of the Safeguards guaranteeing protection of the rights of those facing the death penalty;

7. Decides to continue consideration of the matter at its fifty- seventh session under the same agenda item.

66th meeting 26 April 2000″ 74) Similarly, Clause 89 of the Report of the Special Rapporteur on Extra- Judicial 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 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 with international legal standards”.

75) United Nations General Assembly in its Sixty-second session, adopted a Resolution on 18.12.2007, which speaks about moratorium on the use of the death penalty. The following decisions are relevant:

“1. Expresses its deep concern about the continued application of the death penalty;

2. Calls upon all States that still maintain the death penalty:

(a) To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;

*** *** *** 76th plenary meeting 18 December 2007” 76) The following passage from the Commentary on the Laws of England by William Blackstone is relevant for our consideration:

“..In criminal cases therefore idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced;

and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.” 77) 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 are relevant for our purpose and are quoted hereinbelow:

“386. Condemned convicts developing insanity – When a convict under sentence of death develops insanity after conviction, the Superintendent shall stay the execution of the sentence of death and inform the District Magistrate, who shall submit immediately a report, through the Sessions Judge, for the orders of the State Government.

387. Postponement of execution in certain cases – The execution of a convict under sentence of death shall not be carried out on the date fixed if he is physically unfit to receive the punishment, but shall not be postponed unless the illness is both serious and acute (i.e.

not chronic). A report giving full particulars of the illness necessitating postponement of execution should at once be made to the Secretary to the State Government, Judicial (A) Department for the orders of the Government.” Similar provisions are available in Prison Manuals of other States in India.

78) The above 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 commuted to life imprisonment. To put it clear, “insanity” is a relevant supervening factor for consideration by this Court.

79) 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 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.

Learned counsel also relied on United Nations Resolution against execution of death sentence, debate of the General Assembly, the decisions of International Court of Justice, Treaties, European Conventions, 8th amendment in the United States which prohibits execution of death sentence on an insane person. In view of the well established laws both at national as well as international sphere, we are inclined to consider insanity as one of the supervening circumstances that warrants for commutation of death sentence to life imprisonment.

(iii) Solitary Confinement 80) Another supervening circumstance, which most of the petitioners appealed in their petitions is the ground of solitary confinement. The grievance of some of the petitioners herein is that they were confined in solitary confinement from the date of imposition of death sentence by the Sessions Court which is contrary to the provisions of the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, Prisons Act and Articles 14, 19 and 21 of the Constitution and it is certainly a form of torture.

However, the respective States, in their counter affidavits and in oral submissions, have out rightly denied having kept any of the petitioners herein in solitary confinement in violation of existing laws. It was further submitted that they were kept separately from the other prisoners for safety purposes. In other words, they were kept in statutory segregation and not per se in solitary confinement.

81) Similar line of arguments were advanced in Sunil Batra vs. Delhi Administration and Ors. etc. [1978] INSC 148; (1978) 4 SCC 494, wherein this Court held as under:- “87. The propositions of law canvassed in Batra’s case turn on what is solitary confinement as a punishment and what is non-punitive custodial isolation of a prisoner awaiting execution. And secondly, if what is inflicted is, in effect, ‘solitary’, does Section 30(2) of the Act authorise it, and, if it does, is such a rigorous regimen constitutional. In one sense, these questions are pushed to the background, because Batra’s submission is that he is not ‘under sentence of death’ within the scope of Section 30 until the Supreme Court has affirmed and Presidential mercy has dried up by a final ‘nay’. Batra has been sentenced to death by the Sessions Court. The sentence has since been confirmed, but the appeal for Presidential commutation are ordinarily precedent to the hangmen’s lethal move, and remain to be gone through. 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 insulation inflicted by the Prison Superintendent on the petitioner 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, I.P.C. carry with it a supplementary secret clause of solitary confinement. What warrant then exists 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) Cr.P.C. 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 comingling, 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’.

88. 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 the Legislature cannot be intended to permit preventive solitary confinement, released even from the restrictions of Section 73 and 74 I.P.C., 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.

89. For a fuller comprehension of the legal provisions and their construction we may have to quote the relevant sections and thereafter make a laboratory dissection thereof to get an understanding of the components which make up the legislative sanction for semi-solitary detention of Shri Batra. Section 30 of the Prisons Act rules :

30. (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Deputy Superintendent, and all articles shall be taken from him which the Deputy Superintendent deems it dangerous or inexpedient to leave in his possession.

(2) Every such prisoner, shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under charge of a guard.

This falls in Chapter V relating to discipline of prisoners and has to be read in that context. Any separate confinement contemplated in Section 30(2) has this disciplinary limitation as we will presently see. If we pull to pieces the whole provision it becomes clear that Section 30 can be applied only to a prisoner “under sentence of death”.

Section 30(2) which speaks of “such” prisoners necessarily relates to prisoners under sentence of death. We have to discover when we can designate a prisoner as one under sentence of death.

90. The next attempt is to discern the meaning of confinement “in a cell apart from all other prisoners”. The purpose is to maintain discipline and discipline is to avoid disorder, fight and other untoward incidents, if apprehended.

91. Confinement inside a prison does not necessarily import cellular isolation. Segregation of one person all alone in a single cell is solitary confinement. That is a separate punishment which the Court alone can impose. It would be a subversion of this statutory provision (Section 73 and 74 I.P.C.) 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.

92. 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.

93. “Apart from all other prisoners” used in Section 30(2) is also a phrase of flexible import. ‘Apart’ has the sense of ‘To one side, aside,… apart from each other, separately in action or function’ (Shorter Oxford English Dictionary). Segregation into an isolated cell is not warranted by the word. All that it connotes is that in a cell where there are a plurality of inmates the death sentencees will have to be kept separated from the rest in the same cell but not too close to the others. And this separation can be effectively achieved because the condemned prisoner will be placed under the charge of a guard by day and by night. The guard will thus stand in between the several inmates and the condemned prisoner. Such a meaning preserves the disciplinary purpose and avoids punitive harshness. Viewed functionally, the separation is authorised, not obligated. That is to say, if discipline needs it the authority shall be entitled to and the prisoner shall be liable to separate keeping within the same cell as explained above. “Shall” means, in this disciplinary context, “shall be liable to”. If the condemned prisoner is docile and needs the attention of fellow prisoners nothing forbids the jailor from giving him that facility.

96. Solitary confinement has the severest sting and is awardable only by Court. To island a human being, to keep him incommunicado from his fellows is the story of the Andamans under the British, of Napoleon in St. Helena ! The anguish of aloneness has already been dealt with by me and I hold that Section 30(2) provides no alibi for any form of solitary or separated cellular tenancy for the death sentence, save to the extent indicated.

111. In my judgment Section 30(2) does not validate the State’s treatment of Batra. To argue that it is not solitary confinement since visitors are allowed, doctors and officials come and a guard stands by is not to take it out of the category.” 82) It was, therefore, held that the solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for 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 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 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 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’.

83) Even in Triveniben (supra), this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra (supra) and would amount to inflicting “additional and separate” punishment not authorized by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the jail authorities to comprehend and implement the actual intent of the verdict in Sunil Batra (supra).

84) As far as this batch of cases is concerned, we are not inclined to interfere on this ground.

(iv) Judgments Declared Per Incuriam 85) Many counsels, while adverting to the cause of the petitioners, complained that either the trial court or the High Court relied on/adverted to certain earlier decisions which were either doubted or held per incuriam such as Machhi Singh vs. State of Punjab (1983) 3 SCC 470, Ravji alias Ramchandra vs. State of Rajasthan [1995] INSC 793; (1996) 2 SCC 175, Sushil Murmu vs. State of Jharkhand (2004) 2 SCC 338, Dhananjoy Chatterjee vs. State of W.B.

[1994] INSC 16; (1994) 2 SCC 220, State of U.P. vs. Dharmendra Singh (1999) 8 SCC 325 and Surja Ram vs. State of Rajasthan (1996) 6 SCC 271. Therefore, it is the claim of the petitioners herein that this aspect constitutes a supervening circumstance that warrants for commutation of sentence of death to life imprisonment.

86) It is the stand of few of the petitioners herein that the guidelines issued in Machhi Singh (supra) are contrary to the law laid down in Bachan Singh (supra). Therefore, in three decisions, viz., Swamy Shraddananda (2) vs. State of Karnataka (2008) 13 SCC 767, Sangeet and Another vs. State of Haryana (2013) 2 SCC 452 and Gurvail Singh vs. State of Punjab (2013) 2 SCC 713 the verdict pronounced by Machhi Singh (supra) is held to be per incuriam.

87) In the light of the above stand, we carefully scrutinized those decisions. Even in Machhi Singh (supra), paragraphs 33 to 37 included certain aspects, viz., I. manner of commission of murder; II. motive for commission of murder; III. anti-social or socially abhorrent nature of the crime; IV. magnitude of crime and V. personality of victim of murder.

Ultimately, in paragraph 38, this Court referred to the guidelines prescribed in Bachan Singh (supra). In other words, Machhi Singh (supra), after noting the propositions emerged from Bachan Singh (supra), considered the individual appeals and disposed of the same. In this regard, it is useful to refer a three-Judge Bench decision of this Court in Swamy Shraddananda (2) (supra). The Bench considered the principles enunciated in Machhi Singh (supra), Bachan Singh (supra) and after analyzing the subsequent decisions, came to the conclusion in paragraph 48:

“48..It is noted above that Bachan Singh laid down the principle of the rarest of rare cases. Machhi Singh, for practical application crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for imposing death penalty. But the unfortunate reality is that in later decisions neither the rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently.” 88) Except the above observations, the three-Judge Bench has nowhere discarded Machhi Singh (supra). In other words, we are of the view that the three-Judge Bench considered and clarified the principles/guidelines in Machhi Singh (supra). It is also relied by the majority in Triveniben (supra). As regards other cases, in view of the factual position, they must be read in consonance with the three-Judge Bench and the Constitution Bench.

89) As pointed out by learned ASG for the Union of India, no decision mentioned above was found to be erroneous or wrongly decided. However, due to various factual situations, certain decisions were clarified and not applied to the facts of the peculiar case. In these circumstances, we are of the view that there is no need to give importance to the arguments relating to per incuriam.

(v) Procedural Lapses 90) The last supervening circumstance averred by the petitioners herein is the ground of procedural lapses. It is the claim of the petitioners herein that the prescribed procedure for disposal of mercy petitions was not duly followed in these cases and the lapse in following the prescribed rules have caused serious injustice to both the accused (the petitioners herein) and their family members.

91) 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 death to submit a petition for mercy within seven days 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 this Rule, such petitions 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 execution of sentence shall in all cases be postponed pending receipt of orders on the same. Rule III 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, 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 case 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 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. 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 letters, in the case of Delhi and by telegraph in all other cases and receipt thereof shall be acknowledged by express letter or telegraph, as the case may be. Rule VIII(a) enables the convict that if there is a change of circumstance or if any new material is available in respect of rejection of his earlier mercy petition, he is free to make fresh application to the President for reconsideration of the earlier order.

92) Specific instructions relating to the duties of Superintendents of Jail in connection with the petitions for mercy for or on behalf of the convicts under sentence of death have been issued. Rule I mandates that immediately on receipt of warrant of execution, consequent on the confirmation by the High Court of the sentence of death, the Jail Superintendent shall inform the convict concerned that if he wishes to appeal to the Supreme Court or to make an application for special leave to appeal to the Supreme Court under any of the relevant provisions of the Constitution of India, he/she should do so within the period prescribed in the Supreme Court Rules. Rule II makes it clear that, on receipt of the intimation of the dismissal by the Supreme Court of the appeal or the application for special leave to appeal filed by or on behalf of the convict, in case the convict concerned has made no previous petition for mercy, the Jail Superintendent shall forthwith inform him that if he desires to submit a petition for mercy, it should be submitted in writing within seven days of the date of such intimation. Rule III says that if the convict submits a petition within the period of seven days prescribed by Rule II, it should be addressed, 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, to the President of India. The Superintendent of Jail shall forthwith dispatch it to the Secretary to the State Government in the Department concerned or the Lt. Governor/Chief Commissioner/Administrator, as the case may be, together with a covering letter reporting the date fixed for execution and shall certify that the execution has been stayed pending receipt of orders of the Government on the petition. Rule IV mandates that if the convict submits petition after the period prescribed by Rule II, the Superintendent of Jail shall, at once, forward it to the State Government and at the same time telegraphed the substance of it requesting orders whether execution should be postponed stating that pending reply sentence will not be carried out.

93) 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”.

94) 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.

95) Extracts from Prison Manuals of various States applicable for the disposal of mercy petitions have been placed before us. Every State has separate Prison Manual which speaks about detailed procedure, receipt placing required materials for approval of the Home Minister and the President for taking decision expeditiously. 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.

96) 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 piece-meal records instead of all the materials connected with the conviction should be deprecated. When the matter is placed before the President, it is incumbent upon 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 piece meal.

97) At the time of considering individual cases, we will test whether those Rules have been strictly complied with or not on individual basis.

Analysis on Case-to-Case Basis Writ Petition (Crl.) Nos. 55 and 132 of 2013 98) Mr. Shatrughan Chauhan and Mr. Mahinder Chauhan, family members of death convicts – Suresh and Ramji have filed Writ Petition (Crl.) No. 55 of 2013. Subsequent to the filing of the Writ Petition (Crl.) No. 55 of 2013 by the family members, the death convicts themselves, viz., Suresh and Ramji, aged 60 years and 45 years respectively, belonging to the State of Uttar Pradesh, filed Writ Petition (Crl.) No. 132 of the 2013.

99) On 19.12.1997, the petitioners were convicted under Section 302 IPC for the murder of five family members of the first petitioner’s brother for which they were awarded death sentence. On 23.02.2000, the Allahabad High Court confirmed their conviction and death sentence and, subsequently this Court dismissed their Criminal Appeal being No. 821 of 2000, vide judgment dated 02.03.2001.

100) On 09.03.2001 and 29.04.2001, the first and the second petitioners herein filed mercy petitions respectively addressed to the Governor/President of India. On 28.03.2001, Respondent No. 2–State of Uttar Pradesh wrote to the prison authorities seeking information inter alia on the conduct of the first petitioner in prison. On 05.04.2001, the prison authorities informed Respondent No. 2 about his good conduct.

101) On 18.04.2001, this Court dismissed the Review Petition (Crl.) being No. 416 of 2001 which was filed on 30.03.2001.

102) On 22.04.2001, Respondent No. 1–Union of India wrote to Respondent No. 2 asking for the record of the case and for information on whether mercy petition has been rejected by the Governor. Meanwhile, other mercy petitions were received by Respondent No. 1. There is no reference in the affidavit of Respondent No. 1 that the same were forwarded to Respondent No. 2 for consideration.

103) On 04.05.2001, Respondent No. 2 wrote to the Government Advocate, District Varanasi asking for a copy of the trial court judgment, which information is available from the counter affidavit filed by Respondent No.

2. On 23.05.2001, Respondent No. 2 sent a reminder to the Government Advocate, District Varanasi to send a copy of the trial court judgment. On 04.09.2001, the District Magistrate, Varanasi informed Respondent No. 2 that it is not possible to get a copy of the trial court judgment as all the papers are lying in the Supreme Court.

104) On 13.12.2001, without obtaining a copy of the trial court judgment, Respondent No. 2 advised the Governor to reject the mercy petition. On 18.12.2001, the Governor rejected the mercy petition after taking nine months’ time. On 22.01.2002, Respondent No. 2 informed Respondent No. 1 that the Governor has rejected the petitioners’ mercy petition. It is the grievance of the petitioners that neither the petitioners nor their family members were informed about the rejection.

105) On 28.03.2002, Respondent No. 1 wrote to Respondent No. 2 seeking copy of the trial court judgment. On 12.06.2002, the judgment of the trial court was furnished by Respondent No. 2 to Respondent No. 1.

106) Rule V of the Mercy Petition Rules which exclusively provides that the mercy petition should be sent along with the judgments and related documents immediately, states as follows:

“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”.

107) There is no explanation for the delay of about five months in sending the papers to Respondent No. 1. On 07.12.2002, Respondent No. 2 wrote to Respondent No. 1 seeking information about the status of the petitioners’ mercy petition. Twelve reminders were sent between 17.01.2003 and 14.12.2005.

108) On 27.07.2003, Respondent No. 4-Superintendent of Jail, in accordance with the provisions of the U.P. Jail Manual, wrote to Respondent No. 2 seeking information about the petitioners’ pending mercy petitions.

Thereafter, twenty-seven reminders were sent by the prison authorities between 29.09.2003 and 29.05.2006.

109) On 08.04.2004, Respondent No. 1 advised the President to reject the mercy petition. On 21.07.2004, the President returned the petitioners’ file (along with the files of ten other death-row convicts) to Respondent No. 1 for the advice of the new Home Minister. On 20.06.2005, Respondent No. 1 advised the President to reject the mercy petitions. On 24.12.2010, Respondent No. 1 recalled the files from the President. On 13.01.2011, the said files were received from the President. On 19.02.2011, Respondent No.

1 advised the President to reject the mercy petition.

110) On 14.11.2011, Respondent No. 2 wrote to Respondent No. 1 seeking information about the status of the petitioners’ mercy petitions.

111) On 29.10.2012, the President returned the file for the advice of the new Home Minister. On 16.01.2013, Respondent No. 1 advised the President to reject the mercy petition. On 08.02.2013, the President rejected the mercy petitions.

112) On 05.04.2013, the petitioners heard the news reports that their mercy petitions have been rejected by the President of India. It is asserted that they have not received any written confirmation till this date.

113) On 06.04.2013, the petitioners authorized their family members, viz.

Mr. Shatrughan Chauhan and Mr. Mahinder Chauhan, to file an urgent writ petition in this Court, which was ultimately numbered as Writ Petition (Crl.) No. 55 of 2013. By order dated 06.04.2013, this Court stayed the execution of the petitioners. Only on 20.06.2013, the prison authorities informed vide letter dated 18.06.2013 that the petitioners’ mercy petitions have been rejected by the President.

114) All the above details have been culled out from the writ petitions filed by the petitioners and the counter affidavit filed on behalf of the Union of India as well as the State of Uttar Pradesh. The following are the details relating to disposal of mercy petitions by the Governor and the President:

|Custody suffered till date |6.10.1996 – |17 years 2 | | |17.12.2013 |months | |Custody suffered under sentence|19.12.1997 – |16 years | |of death |17.12.2013 | | |Total delay since filing of |27.04.2001 – |12 years 2 | |mercy petition till prisoner |20.06.2013 |months | |informed of rejection by the | | | |President | | | |Delay in disposal of mercy | | | |petition by Governor | | | |First petitioner |9.3.2001 – |10 months | | |28.01.2002 | | | | | | |Second petitioner |27.04.2001 – |9 months | | |28.01.2002 | | |Delay in disposal of mercy |28.01.2002 – |11 years | |petition by the President |08.02.2013 | | |Delay in communicating |8.02.2013 – |4 months | |rejection by the President |20.06.2013 | | 115) There is no dispute that these petitioners killed five members of their family – two adults and three children over property dispute. It is a heinous crime and they were awarded death sentence which was also confirmed by this Court. However, the details furnished in the form of affidavits by the petitioners, counter affidavit filed by Respondent Nos. 1 and 2 as well as the records produced by Mr. Luthra, learned Additional Solicitor General, clearly show that there was a delay of twelve years in disposal of their mercy petitions. To put it clear, the Governor of Uttar Pradesh took around ten months to reject the mercy petitions (09.03.2001 to 28.01.2002) and the President rejected the petitions with a delay of eleven years (28.01.2002 to 08.02.2013). We also verified the summary prepared by the Ministry of Home Affairs for the President and the connected papers placed by learned ASG wherein no discussion with regard to the same was attributed to.

116) On going through various details, stages and considerations and in the light of various principles discussed above and also of the fact that this Court has accepted in a series of decisions that undue and unexplained delay in execution is one of the supervening circumstances, we hold that in the absence of proper, plausible and acceptable reasons for the delay, the delay of twelve years in considering the mercy petitions is a relevant ground for the commutation of death sentence into life imprisonment. We are also satisfied that the summary prepared by the Ministry of Home Affairs for the President makes no mention of twelve years’ delay much less any plausible reason. Accordingly, both the death convicts – Suresh and Ramji have made out a case for commutation of their death sentence into life imprisonment.

Writ Petition (Crl.) No. 34 of 2013 117) This writ petition is filed by Shamik Narain which relates to four death convicts, viz., Bilavendran, Simon, Gnanprakasam and Madiah aged 55 years, 50 years, 60 years and 64 years respectively.

118) The case emanates from the State of Karnataka. According to the petitioners, the accused persons are in custody for nearly 19 years and 7 months. All the persons were charged under IPC as well as under the provisions of the TADA. By judgment dated 29.09.2001, the Designated TADA Court, Mysore convicted the accused persons for the offence punishable under TADA as well as IPC and the Arms Act and sentenced them inter alia to undergo rigorous imprisonment for life.

119) All the accused persons preferred Criminal Appeal being Nos. 149-150 of 2002 before this Court which were admitted by this Court. The State of Karnataka also filed a Criminal Appeal being No. 34 of 2003 against the judgment dated 29.09.2001 praying for enhancement of sentence from life imprisonment to death sentence. On 09.01.2003, this Court refused to accept the claim of the State of Karnataka and dismissed its appeal on the ground of limitation. However, this Court, by judgment and order dated 29.01.2004, suo motu enhanced the sentence of the accused persons from life imprisonment to death. In the same order, this Court confirmed the conviction and sentence imposed by the TADA Court and dismissed the appeals preferred by the accused.

120) On 12.02.2004, separate mercy petitions were filed by the petitioners and the Superintendent, Central Jail, Belgaum forwarded the same to Respondent No. 1.

121) On 29.04.2004, the review petitions filed by the petitioners were also dismissed by this Court.

122) On 29.07.2004, the Governor rejected the mercy petitions and, according to the petitioners, they were never informed about the same.

123) On 07.08.2004, Respondent No. 2 forwarded the mercy petitions to Respondent No. 1 which were received on 16.08.2004. Here again, there is no explanation for the delay of six months from 12.02.2004, when the mercy petitions were first forwarded to Respondent No. 1.

124) On 19.08.2004, Respondent No. 1 requested Respondent No. 2 for a copy of the trial court judgment. Here again, the trial court judgment and other relevant documents should have been sent to Respondent No. 1 along with the mercy petitions. We have already extracted Rule V of the Mercy Petition Rules relating to forwarding of the required materials as expeditiously as possible. On 30.08.2004, Respondent No. 2 sent a copy of the trial court judgment to Respondent No. 1 which was received on 09.09.2004.

125) On 18.10.2004, the petitioners’ gang leader Veerappan was killed in an encounter by a Special Task Force and his gang disbanded.

126) On 29.04.2005, the Home Minister advised the President to reject the mercy petitions. There was no further progress in the petitions till the files were recalled from the President and received back in the Ministry of Home Affairs, i.e., six years later on 16.05.2011. Though separate counter affidavit has been filed by Respondent No. 1, there is no explanation whatsoever for the delay of six years. Learned counsel for the petitioners pointed out that it is pertinent to take note of the fact that two consecutive Presidents had deemed it fit not to act on the advice suggested. In any event, this procrastination violated the petitioners’ right under Article 21 of the Constitution by inflicting six additional years of imprisonment under the constant fear of imminent death not authorized by judgment of any court.

127) On 28.02.2006, Curative Petition being No. 6 of 2006 was dismissed by this Court.

128) In the meanwhile, letters were sent by the petitioners to the President of India highlighting their grievance about their procrastination for about last twelve years. The information furnished by the Ministry of Home Affairs under the Right to Information Act shows that mercy petitions submitted after the petitions of the petitioners were given priority and decided earlier while the mercy petitions of the petitioners were kept pending.

129) On 16.05.2011, the mercy petitions were recalled by Respondent No. 1 from the President. Here again, there is no explanation for the delay of six years. On 25.05.2011, the Home Minister advised the President for the second time to reject the mercy petition. On 19.11.2012, the President returned the file stating that the views of the new Home Minister may be ascertained. Here again, there is no explanation for the delay of 1 ½

years while the file was pending with the President. On 16.01.2013, the Home Minister advised the President for the third time to reject the mercy petitions. On 08.02.2013, the President rejected the mercy petitions and Respondent No. 2 was informed vide letter dated 09.02.2013.

130) It is the grievance of the petitioners that though they were informed orally and signatures were obtained, the prison authorities refused to hand over the copy of the rejection letter to them or to their advocate. The details regarding delay in this matter are as follows:

|Custody suffered till date |14.07.1993 – |20 years 5 | | |17.12.2013 |months | |Custody suffered under sentence|29.01.2004 – |9 years 11 | |of death |17.12.2013 |months | |Total delay in disposal of the |12.02.2004 – |9 years | |mercy petitions |08.02.2013 | | 131) The delay of six months (12.02.2004 – 07.08.2004) when the mercy petitions were being considered by the Governor is attributed to Respondent No. 1 because the mercy petition had been sent to Respondent No. 1 on 12.02.2004 and also because Respondent No. 2/Governor did not have jurisdiction to entertain the mercy petitions and even if clemency had been granted, it would have been null and void.

132) From the particulars furnished by the petitioners as well as the details mentioned in the counter affidavit of Respondent Nos. 1 and 2, we are satisfied that the delay of nine years in disposal of their mercy petitions is unreasonable and no proper explanation has been offered for the same. Apart from the delay in question, according to us, it is important to note that delay is undue and unexplained. Certain other aspects also support the case of the petitioners for commutation.

133) We have already mentioned that on 29.01.2004, this Court, by its judgment and order, suo motu enhanced the sentence from life imprisonment to death. It is relevant to point out that when the State preferred an appeal for enhancement of the sentence from life to death, this Court rejected the claim of the State, however, this Court suo motu enhanced the same and the fact remains that the appeal filed by the State for enhancement was rejected by this Court.

134) In the earlier part of our discussion, we have already held that the decision in Devender Pal Singh Bhullar (supra), holding that the cases pertaining to offences under TADA have to be treated differently and on the ground of delay in disposal of mercy petition the death sentence cannot be commuted, is per incuriam. Further, this Court in Yakub Memon vs. State of Maharashtra (Criminal Appeal No. 1728 of 2007) delivered on 21.03.2013 and in subsequent cases commuted the death sentence passed in TADA case to imprisonment for life.

135) Taking note of these aspects, viz., their age, in custody for nearly twenty years, unexplained delay of nine years in disposal of mercy petitions coupled with other reasons and also of the fact that the summary prepared by the Ministry of Home Affairs for the President makes no mention of the delay of 9 ½ years and also in the light of the principles enunciated in the earlier paragraphs, we hold that the petitioners have made out a case for commutation of death sentence to imprisonment for life.

Writ Petition (Crl.)No. 187 of 2013 136) Praveen Kumar, aged about 55 years, hailing from Karnataka, has filed this petition. He was charged for murdering four members of a family and ultimately by judgment dated 05.02.2002, he was convicted under Sections 302, 392 and 397 IPC and sentenced to death. The petitioner was defended on legal aid.

137) By judgment dated 28.10.2002, death sentence was confirmed by the Division Bench of the High Court of Karnataka and by order dated 15.10.2003, this Court dismissed the appeal filed by the petitioner.

138) On 25.10.2003, the petitioner sent the mercy petition addressed to the President of India wherein he highlighted that he has been kept in solitary confinement since the judgment of the trial Court, i.e., 05.02.2002.

139) On 12.12.2003, Respondent No. 1 requested Respondent No. 2 to consider the petitioner’s mercy petition under Article 161 of the Constitution and intimate the decision along with the copies of the judgment of the trial Court, High Court, police diary and court proceedings. Respondent No. 1 also received mercy petition signed by 260 persons. By order dated 15.09.2004, the Governor rejected the mercy petition. On 30.09.2004, Respondent No. 2 informed Respondent No. 1 that the petitioner’s mercy petition has been rejected by the Governor.

140) On 18.10.2004, Respondent No. 1 requested Respondent No. 2 for the second time to send the judgment of the trial Court along with the police diary and court proceedings. On 20.12.2004, according to Respondent No. 1, Respondent No. 2 sent the requested documents to Respondent No. 1 but Respondent No. 1 claimed that the same were in Kannada. On 07.01.2005, Respondent No. 1 returned the documents sent by Respondent No. 2 with a request to provide English translation. The State Government was again reminded in this regard on 05.04.2005, 20.04.2005, 04.06.2005 and 21.07.2005. Even after these reminders, the translated documents were not sent.

141) On 06.09.2005, the mercy petition of the petitioner-Praveen Kumar was processed and examined without waiting for the copy of the judgment of the trial Court and submitted for consideration of the Home Minister. The Home Minister approved the rejection of the mercy petition. On 07.09.2005, Respondent No. 1 advised the President to reject the petitioner’s mercy petition. On 14.03.2006, Respondent No. 2 sent the translated documents to Respondent No. 1.

142) On 20.08.2006, the petitioner wrote to the President referring to his earlier mercy petition dated 25.10.2003 stating that for the last four years and seven months he has been languishing in solitary confinement under constant fear of death.

143) On 29.09.2006, the petitioner wrote to the Chief Minister of Karnataka referring to his earlier mercy petition dated 25.10.2003 highlighting the same grievance.

144) The information received under RTI Act shows that mercy petitions submitted after the petition of the petitioner were given priority and decided earlier while the mercy petition of the petitioner was kept pending.

145) On 01.07.2011, the petitioner’s mercy petition was recalled from the President and received by Respondent No. 1 and thereafter it remained pending consideration of the President of India for five years and 10 months. There is no explanation for this inordinate delay.

146) On 14.07.2011, Respondent No. 1 advised the President to reject the petitioner’s mercy petition. The file remained with the President till 29.10.2012, i.e. for 1 year 3 months and no explanation was offered for this delay.

147) On 29.10.2012, the President returned the petitioner’s mercy petition to Respondent No. 1 ostensibly on the ground of an appeal made by 14 former Judges. However, this appeal, as is admitted in the counter affidavit filed by Respondent No. 1 itself, “had not indicated any plea in respect of Praveen Kumar”. On 16.01.2013, Respondent No. 1 advised the President to reject the petitioner’s mercy petition.

148) On 26.03.2013, the President rejected the petitioner’s mercy petition. On 05.04.2013, the petitioner heard news reports that his mercy petition has been rejected by the President of India. He has not received any written confirmation of the same till date.

149) On 06.04.2013, this Court stayed the execution of the sentence in Writ Petition (Crl.) No. 56 of 2013 filed by PUDR. The following details show the delay in disposal of petitioner’s mercy petition by the Governor and the President:

|Custody suffered till|2.3.94-19.2.95+1.2.99-|15 years 9 months | |date |17.12.13 | | |Custody suffered |04.02.02-17.12.13 |11 years 10 months | |under sentence of | | | |death | | | |Total delay since |25.10.2003-5.4.2013 |9 years 5 months | |filing of mercy | | | |petition till | | | |prisoner coming to | | | |know of rejection by | | | |President | | | |Delay in disposal of |25.10.03-30.09.04 |11 months | |mercy petition by | | | |Governor | | | |Delay in disposal of |30.09.04-26.03.2013 |8 ½ years | |mercy petition by | | | |President | | | 150) Though learned counsel for the petitioner highlighted that the trial Court relied on certain decisions which were later held to be per incuriam, in view of the fact that there is a delay of 9½ years in disposal of the mercy petition, there is no need to go into the aspect relating to the merits of the judicial decision. On the other hand, we are satisfied that even though the Union of India has filed counter affidavit, there is no explanation for the huge delay. Accordingly, we hold that the delay in disposal of the mercy petition is one of the relevant circumstances for commutation of death sentence. Further, we perused the notes prepared by the Ministry of Home Affairs as well as the decision taken by the President. The summary prepared by the Ministry of Home Affairs for the President makes no mention of the unexplained and undue delay of 9 ½ years in considering the mercy petition. The petitioner has rightly made out a case for commutation of death sentence into life imprisonment.

Writ Petition (Crl.)No. 193 of 2013 151) Gurmeet Singh, aged about 56 years, hailing from U.P. has filed this petition. According to him, he is in custody for 26 years.

152) The allegation against the petitioner is that he murdered 13 members of his family on 17.08.1986. By order dated 20.07.1992, the trial Court convicted the petitioner under Sections 302, 307 read with Section 34 IPC and awarded death sentence.

153) On 28.04.1994, the Division Bench of the Allahabad High Court pronounced the judgment in the petitioner’s Criminal Appeal No. 1333 of 1992. The two Hon’ble Judges disagreed with each other on the question of guilt, Malviya, J. upheld the petitioner’s conviction and death sentence and dismissed his appeal, while Prasad, J. acquitted the petitioner herein and allowed his appeal.

154) On 29.02.1996, in terms of Section 392 of the Code, the papers were placed before a third Judge (Singh, J.), who agreed with Malviya, J. and upheld the petitioner’s conviction and sentence.

155) On 08.03.1996, the Division Bench dismissed the appeal of the petitioner herein and confirmed his death sentence.

156) On 28.09.2005, this Court dismissed the petitioner’s appeal and upheld the death sentence passed on him. The petitioner was represented on legal aid.

157) On 06.10.2005, the petitioner sent separate mercy petitions through jail addressed to the President of India and the Governor of Uttar Pradesh.

158) On 24.12.2005, the Prison Superintendent sent a radiogram to Respondent No. 2 reminding about the pendency of the mercy petition.

Thereafter, 10 radiograms/letters were sent till 16.05.2006. These 11 reminders are itself testimony of the unreasonable delay by the State Government in deciding the petitioner’s mercy petition.

159) On 04.04.2006, the Governor rejected the petitioner’s mercy petition.

160) On 26.05.2006, the fact of the rejection by the Governor was communicated to Respondent No. 1 and to the Prison authorities after a delay of more than 1½ months.

161) On 16.06.2006, the President forwarded to Respondent No. 1 letter dated 02.06.2006 of the Additional District & Sessions Judge, Shahjahanpur, addressed to Respondent No. 2 requesting to intimate the status of the petitioner’s mercy petition pending before the President.

162) On 07.07.2006, Respondent No. 1 forwarded the letter of the Additional District and Sessions Judge to Respondent No. 2 with a request to forward the petitioner’s mercy petition as the same has not been received along with the judgment of the courts, police diary etc.

163) On 09.02.2007, Respondent No. 2 sent the mercy petition and other related documents to Respondent No. 1, i.e., 10 months after the mercy petition was rejected by the Governor. The Mercy Petition Rules, which we have already extracted in the earlier part, explicitly provide that the mercy petition and the related documents should be sent immediately. There is no explanation for the delay of 10 months in sending the papers to Respondent No. 1.

164) On 18.05.2007, Respondent No. 1 advised the President to reject the petitioner’s mercy petition.

165) On 04.11.2009, the petitioner’s mercy petition file was received from the President’s office by Respondent No. 1.

166) Again on 09.12.2009, Respondent No. 1 advised the President to reject the petitioner’s mercy petition. There was no progress in the petitioner’s case for the next 2 years and 11 months, i.e., till 29.10.2012.

167) On 29.10.2012, the President returned the petitioner’s mercy petition to Respondent No. 1, ostensibly on the pretext of an appeal made by 14 former judges, even though, as is admitted in the counter affidavit filed by Respondent No. 1, this appeal does not in any way relate to the case of the petitioner.

168) On 16.01.2013, Respondent No. 1 advised the President to reject the petitioner’s mercy petition.

169) On 01.03.2013, the President of India rejected the petitioner’s mercy petition.

170) On 05.04.2013, the petitioner heard the news reports that his mercy petition has been rejected by the President of India. However, till date the petitioner has not received any official written communication that his mercy petition has been rejected either by the Governor or by the President.

171) On 06.04.2013, this Court stayed the execution of the death sentence of the petitioner in W.P. (Crl.) No. 56 of 2013 filed by the Peoples’ Union for Democratic Rights (PUDR).

172) On 20.06.2013, 3 ½ months after the actual rejection of the petitioner’s mercy petition, the news was communicated to the prison authorities. The following are the details regarding the delay in disposal of mercy petition by the Governor and the President:

|Custody suffered till|16.10.1986-17.12.2013|26 years 2 months | |date |less 1 year of | | | |under-trial bail | | |Custody suffered |20.07.1992-17.12.2013|21 years 5 months | |under sentence of | | | |death | | | |Total delay since |6.10.2005-20.06.2013 |7 years 8 months | |filing of mercy | | | |petition till | | | |prisoner coming to | | | |know of rejection by | | | |President | | | |Delay in disposal of |6.10.2005-4.4.2006 |6 months | |mercy petition by | | | |Governor | | | |Delay in disposal of |4.4.2006-1.3.2013 |6 years 11 months | |mercy petition by | | | |President | | | |Delay in |1.3.2013-20.06.2013 |3 ½ years | |communicating | | | |rejection to | | | |petitioner | | | The above details clearly show that there is a delay of 7 years 8 months in disposal of mercy petition by the Governor and the President.

173) Though Respondent No. 1 has filed a separate counter affidavit, there is no acceptable reason for the delay of 7 years 8 months. In the absence of adequate materials for such a huge delay, we hold that the delay is undue and unexplained.

174) In the file of the Home Ministry placed before us, at pages 31 & 32, the following recommendations have been made for commutation of death sentence to life imprisonment which are as under:

“I think that in this case too, we can recommend commutation of death sentence to life imprisonment for two reasons:

1) There was a disagreement amongst the Hon. Judges of the High Court implying thereby that there was some doubt in the mind of at least one Hon. Judge that this might not be the ‘rarest of the rare cases’.

2) Unusual long delay in investigation and trial is another reason.

This kind of submission was also made by the learned amicus curiae but was disregarded by the Court. I think the submission should have been accepted.

Accordingly, I suggest that we may recommend that the death sentence of Sh. Gurmeet Singh be commuted to that of life imprisonment but he would not be allowed to come out of prison till he lives.

Sd/-” However, this was not agreed to by the Home Minister.

175) In view of the reasons and discussion in the earlier part of our order, the petitioner-convict is entitled to commutation of death sentence into life imprisonment. Even in the summary prepared by the Ministry of Home Affairs for the President makes no mention of the delay of 7 years 8 months. We are satisfied that the petitioner has made out a case for commutation of death sentence into life imprisonment.

Writ Petition (Crl.) No. 188 of 2013 176) Sonia and Sanjeev Kumar, aged about 30 and 38 years respectively, hailing from Haryana, have filed this petition. According to them, they are in custody for about 12 years.

177) On 27.05.2004, both of them were convicted for the offence punishable under Section 302 and sentenced to death by the trial Court. By order dated 12.04.2005, the High Court confirmed their conviction but modified their sentence of death into life imprisonment. The order of the High Court was challenged before this Court in Criminal Appeal No. 142 of 2005 and Criminal Appeal No. 894 of 2005 and Criminal Appeal No. 895 of 2006. By order dated 15.02.2007, this Court upheld their conviction and enhanced the imprisonment for life to death sentence.

178) In February, 2007, the petitioners filed a mercy petition before the Governor of Haryana. Similar mercy petitions were sent to the President.

179) On 23.08.2007, the Review Petitions being Nos. 260-262 of 2007 filed by the petitioners were dismissed.

180) On 31.10.2007, Respondent No. 2 informed Respondent No. 1 that the mercy petitions filed by the petitioners have been rejected by the Governor of Haryana and forwarded the relevant documents.

181) On 08.02.2008, Respondent No. 1 advised the President to reject the petitioner’s mercy petitions. The mercy petitions remained pending with the President till 16.04.2009.

182) On 16.04.2009, the President sent the petitioners’ file along with the first petitioner’s letter dated 17.02.2009 to reject their petitions conveying their difficult position to continue with their life to Respondent No. 1.

183) On 20.05.2009, Respondent No. 1 advised the President for the second time to reject the petitioners’ mercy petitions.

184) On 04.02.2010, the President returned the petitioners’ file to Respondent No. 1 seeking clarification whether the first petitioner’s request to reject the mercy petition amounts to withdrawal of original mercy petition and if so, is there further need to reject the petition? On 17.02.2010, Respondent No. 1 referred the President’s query to the Law Department. On 05.03.2010, Respondent No. 1 advised the President for the 3rd time to reject the petitioners’ mercy petitions. On 03.01.2012, upon the request of Respondent No. 1, the President returned the petitioners’ file to Respondent No. 1. On 18.01.2012, Respondent No. 1 advised the President for the 4th time to reject the petitioners’ mercy petitions.

185) On 29.10.2012, the President returned the petitioners’ file back to Respondent No. 1 in the light of the appeal made by 14 former judges. It is pointed out by learned counsel that admittedly the appeal was made for other prisoners and not for the petitioners and so there was no need to return the files.

186) On 29.01.2013, since it was found that the judges’ appeal did not pertain to the petitioners, Respondent No. 1 advised the President for the 5th time to reject the petitioners’ mercy petitions. On 21.02.2013, the petitioners, anxious for a decision on their mercy petitions, wrote to the President again reiterating their plea for mercy.

187) On 28.03.2013, the President returned the petitioners’ file to Respondent No. 1, supposedly on account of the petitioners’ letter dated 21.02.2013. On 06.06.2013, Respondent No. 1 advised the President for the 6th time to reject the petitioners’ mercy petitions “as no mitigating circumstance was found”. Finally, on 29.06.2013, the President rejected the petitioners’ mercy petitions.

188) On 13.07.2013, the petitioners’ family members received a letter dated 11.07.2013 from the prison authorities informing that the petitioners’ mercy petitions have been rejected by the President of India.

The following are the details regarding the delay in disposal of the mercy petition by the Governor and the President:

|Custody suffered |26.08.2001/19.09.2001-17|12 years 3 months | |till date |.12.2013 | | |Total delay since |Feb.2007-13.07.2013 |6 years 5 months | |filing of mercy | | | |petition till | | | |prisoner coming to | | | |know of rejection by| | | |President | | | |Delay in disposal of|Feb. 2007-31.10.2007 |8 months | |mercy petition by | | | |Governor | | | |Delay in disposal of|31.10.2007-29.06.2013 |5 years 8 months | |mercy petition by | | | |President | | | 189) In view of the above details as well as the explanation offered in the counter affidavit filed by Respondent No. 1, we hold that the delay in disposal of mercy petitions is undue and unexplained and in the light of our conclusion in the earlier part of our order, the unexplained and undue delay is one of the circumstances for commutation of death sentence into life imprisonment.

190) In addition, due to unbearable mental agony after confirmation of death sentence, petitioner No.1 attempted suicide. In view of our conclusion that the delay in disposal of mercy petitions is undue and unexplained, we hold that the petitioners have made out a case for commutation of death sentence into life imprisonment.

Writ Petition(Crl.)No. 192 of 2013 191) PUDR has filed this petition for Sundar Singh, who is hailing from Uttarkhand. On 30.06.2004, Sundar Singh was convicted by the Sessions Court under Sections 302, 307 and 436 IPC and sentenced to death. On 20.07.2005, the High Court confirmed the death sentence passed by the trial Court. On 16.09.2010, this Court dismissed the appeal filed by Sundar Singh through legal aid.

192) On 29.09.2010, Sundar Singh sent a mercy petition through jail authorities addressed to the President of India stating therein that he had committed the offence due to insanity and that he repented for the same each day and shall continue to do for the rest of his life.

193) On 29.09.2010, the prison authorities filled in a nominal roll for Sundar Singh in which they stated that Sundar Singh’s mental condition is abnormal. The said form was sent to Respondent Nos. 1 and 2. The prison authorities noticed that Sundar Singh’s behaviour had become extremely abnormal. He was initially treated for mental illness by the prison doctor and, thereafter, he was examined by doctors from the HMM District Hospital, Haridwar. Thereafter, when he continued to show signs of insanity, the prison authorities called a team of psychiatrists from the State Mental Institute, Dehradun to examine him. The psychiatrists found him to be suffering from schizophrenia and recommended that he be sent to Benaras Mental Hospital. On 15.10.2010, Sundar Singh was admitted to Benaras Mental Hospital and he remained there for 1 ½ years till his discharge on 28.07.2012 with further prescriptions and advice for follow up treatment.

194) On 19.10.2010, Respondent No. 1 informed Respondent No. 2 in writing that Sundar Singh’s mercy petition should be first sent to the Governor.

195) Based on the direction of Respondent No. 1, on 20.10.2010, the prison authorities forwarded the mercy petition of Sundar Singh to the Governor.

On 21.01.2011, the Governor rejected the mercy petition of Sundar Singh and Respondent No. 2 forwarded the same to the President.

196) On 24.05.2011, Respondent No. 1 wrote to Respondent No. 2 asking for a copy of Sundar Singh’s nominal roll, medical record and crime record. On 01.06.2011, Respondent No. 2 sent Sundar Singh’s nominal roll and medical report to Respondent No. 1. In the covering letter, Respondent No. 2 informed Respondent No. 1 that Sundar Singh had been declared to be a mental patient by medical experts and was admitted to Varanasi Mental Hospital for treatment on 11.12.2010.

197) On 03.02.2012, Respondent No. 1 advised the President to reject the mercy petition filed by Sundar Singh. On 30.10.2012, the President returned the mercy petition of Sundar Singh ostensibly because of the petition sent by 14 former judges wherein there was a specific reference to the case of Sundar Singh.

198) On 28.12.2012, Sundar Singh was examined by a doctor in prison who noted that he was “suicidally inclined” and prescribed him very strong anti psychotic medicines. Despite that, on 01.02.2013, Respondent No. 1 advised the President to reject the mercy petition of Sundar Singh.

199) On 16.02.2013, the prison authorities again called a team of three psychiatrists from the State Mental Hospital, Dehradun, who examined Sundar Singh. In their report, they mentioned that Sundar Singh had already been diagnosed as suffering from undifferentiated schizophrenia. They noted that he was “unkempt and untidy, cooperative but not very much communicative” and his “speech is decreased in flow and content” and “at times is inappropriate and illogical to the question asked.” They concluded as follows:

“he is suffering from chronic psychotic illness and he needs long term management”.

The prison authorities sent this report to Respondent No. 1.

200) On 31.03.2013, the President rejected the mercy petition of Sundar Singh. On 02.04.2013, Respondent No. 1 informed Respondent No. 2 that the President has rejected the mercy petition of Sundar Singh. On 05.04.2013, Sundar Singh was orally informed by the prison authorities that his mercy petition had been rejected by the President but he did not appear to understand and did not react.

201) On 06.04.2013, this Court stayed the execution of death sentence of Sundar Singh in W.P.(Crl.) No. 56 of 2013 filed by PUDR.

202) On 31.10.2013, at the instance of the prison authorities, Dr. Arun Kumar, Neuro Psychiatrist from the State Mental Institute, Dehradun was brought to the prison to examine Sundar Singh. He opined as follows:

“Sundar Singh is suffering from schizophrenia (undifferentiated) and requires long term bed rest. He is not mentally fit to be awarded for death penalty.” 203) We have carefully perused all the details. Though there is a delay of only 2 ½ years in considering the mercy petition of Sundar Singh, the counter affidavit as well as various communications sent by the jail authorities clearly show that Sundar Singh was suffering from mental illness, i.e., Schizophrenia.

204) In the earlier part of our order, while considering “mental illness”, we have noted Rules 386 and 387 of the U.P. Jail Manual which are applicable to the State of Uttarakhand also, which clearly show that when condemned convict develops insanity, it is incumbent on the part of the Superintendent to stay the execution of sentence of death and inform the same to the District Magistrate. In the reply affidavit filed on behalf of Respondent Nos. 2-4 insofar as mental illness of the convict – Sundar Singh is concerned, it is stated as under:

“16. As far as illness of the convict Sunder Singh is concerned, he has been regularly medically examined as per the provisions of the jail manual, he was examined by Medical Officers of HMM District Hospital, Haridwar and thereafter on the recommendation of the Doctors of State Mental Health Institute, Dehradun, the Prisoner was sent to Mental Hospital, Varanasi on 15.10.2010 for examination and treatment.

17. Convict Sunder Singh was admitted in the Mental Hospital, Varansai for treatment and after his treatment, Board of Visitors under Chairpersonship of District Judge, Varansai, convict Sunder Singh was found fit and, therefore, they discharged the convict Sunder Singh along with certain prescription and advice on 28.7.2012 from Mental Hospital, Varanasi..

18. In pursuance of above advice of the Doctors of Mental Hospital, Varansai, on the request of the Jail Administration to State Mental Hospital, Selaqui, Dehradun, a panel of three Doctors visited on 16.2.2013 and examined the Convict Sunder Singh and opined that on the basis of information and present assessment, he is suffering from chronic psychiatric illness and he need long term treatment..

19. Convict has thereafter been regularly provided due medical assistance in the form of medicine and examination. On 31.10.2013, Dr. Arun Kumar, neuro psychiatric from State Mental Health Institute, Selaqui, Dehradun visited to the District Jail for examination of the Convict Sunder Singh and opined: Impression: Sunder Singh is suffering from Schizophrenia (undifferentiated) and require long term bed rest.

He is not mentally fit to be awarded for death penalty..

20. On 5.11.2013, on the aforesaid report dated 31.10.2013, Chief Medical Superintendent, State Medical Health Institute Selaqui Dehradun, has been requested to send a panel of Doctors for thorough examination of the mental state of the said Prisoner Sunder Singh.

Upon medical examination by a board of Doctors and receipt of the examination report the State and Jail Authorities shall act in accordance with law.

In view of the above submission, this Hon’ble Court may kindly pass appropriate orders disposing of the present petition. The answering respondent is duty bound to comply the orders passed by the Hon’ble Court.” Along with the reply affidavit, the State has fairly enclosed the medical reports, various correspondence/intimation about the Schizophrenia of lunatic nature/mental illness of the petitioner suffering from Schizophrenia. Further, even on 24.05.2011, the Government of India, Ministry of Home Affairs, after receipt of mercy petition of the condemned prisoner – Sundar Singh requested the Principal Secretary, Government of Uttarakhand, Secretariat, Dehradun to furnish the following documents/information at the earliest:

i) Present age of the prisoner along with nominal roll.

ii) Medical report of the prisoner iii) Previous crime record, if any, of the prisoner.

205) Pursuant to the same, Shri Rajeev Gupta, Principal Secretary, Government of Uttarakhand furnished all the details to the Joint Secretary (Judicial), Ministry of Home Affairs, Government of India, Jaisalmer House, New Delhi enclosing various medical reports. Learned counsel for the State has also placed mental status of Sundar Singh duly certified by the State Mental Health Institute, Dehradun which is as under:

“MENTAL STATUS EXAMINATION REPORT Prisoner Name: Mr. Sunder Singh, age about 40 yrs/male, S/o Mr. Har Singh with mark of identification – Black mole over left side lower part of neck, has been assessed by following experts on 16/2/2013 at District Jail, Haridwar.

Dr. J.S. Bisht, Psychiatrist Dr. Arun Kumar, Psychiatrist Dr. Pratibha Sharma, Psychiatrist As per information by jail staff and fellow prisoners above mentioned prisoner is not interacting with others, not concerned about personal hygiene and would like to stay alone.

Previous record show that he was referred to Banaras Mental Hospital on 11/12/2010 for Management after being diagnosed as Undifferentiated Schizophrenia by previous psychiatrist.

Current mental status examination shows that he is unkempt and untidy, cooperative but not very much communicative. Speech is decreased in flow and content. At time it was inappropriate and illogical to the question asked. Affect is blunted. Thought flow is decreased and there is poor awareness.. OPINION On the basis of information and present assessments he is suffering from chronic Psychotic illness and he needs long term treatment.

(Signature of Dr. illegible) (Signature of Dr. illegible) (Signature of Dr. illegible) Date 16/2/2013 Dr. J.S. Bisht Dr. Arun Kumar Dr. B. Pratibha Sharma Psychiatrist Thumb Date 16/2/13 Distt. Jail Haridwar” MENTAL STATUS EXAMINATION REPORT Prisoner Name: Mr. Sunder Singh, age about 41 years/male, S/o Mr. Har Singh Identification Mark: Black mole over left side lower part of neck.

Index prisoner is examined by me at District Jail, Haridwar.

As per information by jail staff, prisoner records and current mental status examination, the sufferings from undifferentiated Schizophrenia which is chronic illness. The patient/prisoner require long term treatment to remain in remission period. Person with mentioned diagnose remain in remission and cannot be said as cured.

Impression: Sunder Singh is suffering from Schizophrenia (Undifferentiated) and required long term treatment.

He is not mentally fit to be awarded for death penalty.

(Signature of Dr. Arun Kumar) Date 31/10/13 Dr. Arun Kumar (MBBS, DPM, DNB) Neuropsychiatries State Mental Health Institute Salequi Dehradun Thumb Attested LTI of Sunder Singh (Signature of Dr. Arun Kumar) Date 31/10/13 Dr. Arun Kumar (MBBS, DPM, DNB) Neuropsychiatries State Mental Health Institute Salequi Dehradun” 206) Even if we agree that there is no undue delay in disposal of the mercy petition by the President, we are satisfied that Sundar Singh is suffering from mental illness, i.e., Schizophrenia as noted by 3 doctors, viz., Dr. J.S. Bisht, Dr. Arun Kumar, and Dr. Pratibha Sharma, Psychiatrists attached to the State Mental Health Institute, Salequi, Dehradun.

207) In the earlier part of our discussion, we have highlighted various Rules from the U.P. Jail Manual which are applicable to the State of Uttarakhand also, various international conventions to which India is a party and the decisions by the U.N.O. regarding award of death sentence and execution of persons suffering from mental illness. Though all the details were furnished by the persons concerned to Respondent No. 1, Ministry of Home Affairs, unfortunately, those aspects were neither adverted to by the Home Minister nor the summary prepared by the Ministry of Home Affairs for the President makes any reference to the mental condition as certified by the competent doctors.

208) We are satisfied that in view of the mental illness, he cannot be executed. On this ground, the death sentence has to be commuted to life imprisonment. If the condition of Sundar Sigh requires further treatment, we direct the jail authorities to provide all such medical facilities to him.

Writ Petition (Crl.)No. 190 of 2013 209) The death convict Jafar Ali, aged about 48 years, hailing from U.P., has filed the above writ petition. According to him, he is in custody for more than 11 years (single cell confinement).

210) On 14.07.2003, the petitioner was convicted under Section 302 IPC for the murder of his wife and five daughters and was sentenced to death. On 27.01.2004, the Division Bench of the Allahabad High Court confirmed the death sentence passed on the petitioner. On 05.04.2004, the petitioner through legal aid filed SLP (Crl.) No. 1129 of 2004. This Court did not grant special leave and dismissed the SLP in limine.

211) On 19.04.2004, the petitioner sent a mercy petition through jail superintendent to the President of India and the Governor of Uttar Pradesh.

On 22.04.2004, Respondent No. 4 sent a radiogram to Respondent No. 2 to enquire about the status of the petitioner’s mercy petition. Thereafter, between 24.04.2004 and 16.05.2005, 14 more such radiograms/letters were sent by Respondent No. 4 to Respondent No. 2 enquiring about the status of the petitioner’s mercy petition. These 15 reminders testify to the unreasonable delay caused by the State Government in deciding the petitioner’s mercy petition.

212) On 20.05.2005, one year after the receipt of the mercy petition, Respondent No. 2 wrote to the District Magistrate and the Government Advocate, Allahabad High Court for the trial court as well as the High Court judgments relating to the petitioner’s case. Here again, there is no explanation for the delay of 11 months.

213) On 30.09.2005, the Government Advocate, Allahabad High Court sent the High Court judgment in the petitioner’s case to Respondent No. 2. Here again, there is no explanation for the delay of four months in sending the judgment.

214) On 28.11.2005, the Governor rejected petitioner’s mercy petition. It took one year and seven months in rejecting the petitioner’s mercy petition in spite of 15 reminders. On 30.12.2005, the Special Secretary, UP Government informed the Home Ministry, Government of India about the rejection of mercy petition by the Governor.

215) On 22.12.2005, information about the rejection of the mercy petition by the Governor was communicated to the prison authorities one month after its rejection. On 18.01.2006, Respondent No. 1 requested Respondent No. 2 to furnish the petitioner’s mercy petition along with the recommendation of the Governor, judgments of the courts and other records of the case.

216) On 17.07.2006, Respondent No. 2 sent the documents to Respondent No.

1 which were requested vide letter dated 18.01.2006 along with a request for an early intimation of the decision on the mercy petition. Here again, there is no explanation for the delay of seven months in sending those documents.

217) As pointed out earlier, Rule V of the Mercy Petition Rules explicitly provides that the mercy petition should be sent along with the judgments and related documents immediately. There is no explanation for this inordinate delay of seven months in sending the papers to Respondent No. 1.

218) On 17.08.2006, Respondent No. 1 advised the President to reject the mercy petition. On 16.01.2007, Respondent No. 2 sent another reminder to Respondent No. 1 regarding the pendency of the petitioner’s mercy petition.

Thereafter, further 15 reminders were sent on various dates i.e., on 06.09.2007, 10.07.2008, 19.02.2009, 17.03.2009, 29.05.2009, 27.07.2009, 10.09.2009, 29.09.2009, 10.11.2009, 14.01.2010, 20.04.2010, 26.07.2010, 30.08.2010, 15.07.2011 and 22.11.2011. These 16 reminders testify the unreasonable delay caused in deciding the petitioner’s mercy petition.

219) On 30.09.2011, Respondent No. 1 recalled the files from the President. There is no explanation for this inordinate delay of 5 years and 1 month. On 01.11.2011, Respondent No. 1 advised the President to reject the mercy petition.

220) On 30.10.2012, the President returned the mercy petition to Respondent No. 1 ostensibly on the ground of a petition sent by 14 retired judges to the President. There was no reference of the plea of Jafar Ali in the representation made by 14 retired judges. On 24.01.2013, Respondent No. 1 advised the President to reject the mercy petition. On 14.03.2013, the President rejected the mercy petition, viz., 7 years and 4 months after rejection by the Governor and after 16 reminders sent by the State Government.

221) On 19.03.2013, Respondent No. 1 informed Respondent No. 2 of the rejection of the mercy petition. On 05.04.2013, the petitioner heard the news reports that his mercy petition has been rejected by the President of India.

222) On 06.04.2013, this Court stayed the execution of the petitioner in Writ Petition (Crl.) No. 56 of 2013 filed by PUDR.

223) On 22.06.2013, the prison authorities were informed vide letter dated 18.06.2013 that the President rejected the petitioner’s mercy petition.

There is no explanation for this delay of three months in informing the prison authorities and the petitioner about the rejection of the mercy petition.

224) On 08.07.2013, Respondent No. 4 informed the petitioner that his mercy petition had been rejected by the President.

225) The details regarding delay in disposal of mercy petitions by the Governor and the President are as follows:

|Custody suffered till date |27.07.2002 – |11 years, 5 | | |17.12.2013 |months | |Custody suffered under sentence|14.07.2003 – |10 years, 5 | |of death |17.12.2013 |months | |Total delay in disposal of |19.04.2004 – |9 years, 2 | |mercy petition |22.06.2013 |months | |Delay in disposal of mercy |19.04.2004 – |1 year, 5 | |petition by Governor |29.09.2005 |months | |Delay in disposal of mercy |29.09.2005 – |7 years, 5 | |petition by the President |14.03.2013 |months | |Delay in intimating prisoner of|14.03.2013 – |3 months | |rejection of mercy petition by |22.06.2013 | | |President | | | 226) A perusal of the details furnished by the petitioner, counter affidavit filed by the Union of India as well as the State clearly shows that the delay was to the extent of 9 years. Though in the counter affidavit Respondent No. 1 has discussed various aspects including the decision taken by the Home Ministry and the note which was prepared for the approval of the President, the fact remains that there is no explanation at all for taking seven years and five months for disposal of a mercy petition by the President. It is for the executive, viz., the Home Ministry, to explain the reason for keeping the mercy petition for such a long time. To that extent, everyday, after the confirmation of death sentence by this Court is painful for the convict awaiting the date of execution.

227) Accordingly, in view of the unexplained and undue delay of nine years in disposal of mercy petition by the Governor and the President, we hold that the petitioner is entitled to commutation of death sentence to life.

228) Apart from undue and unexplained delay in disposal of mercy petition, another relevant aspect has not been noted by the Ministry while preparing the notes for the President, viz., when the petitioner preferred special leave to appeal against the decision of the High Court confirming the death sentence, this Court did not grant special leave and dismissed the SLP in limine. Though such recourse is permissible inasmuch as since it is a case of death sentence, it is desirable to examine the materials on record first hand in view of time-honoured practice of this Court and to arrive at an independent conclusion on all issues of facts and law, unbound by the findings of the trial court and the High Court. This principle has been highlighted in various decisions including the recent one in Mohd. Ajmal Kasab vs. State of Maharashtra (2012) 9 SCC 1.

229) In addition, we also perused the notes prepared by the Ministry of Home Affairs, the decision taken by the Home Ministry and the notes placed for the approval of the President. It is not in dispute that the summary prepared by the Ministry of Home Affairs for the President failed to consider the undue delay and there is no explanation for the same at all.

230) We are satisfied that all these grounds enable this court to commute death sentence into life.

Writ Petition (Crl.) Nos. 191 and 136 of 2013 231) Writ Petition (Crl.) No. 191 of 2013 has been filed by Maganlal Barela, death convict, aged about 40 years, hailing from the State of M.P.

and on his behalf, PUDR has filed Writ Petition (Crl.) No. 136 of 2013 for similar relief.

232) The petitioner claims that he is in custody for more than three years (single cell confinement). On 03.02.2011, the petitioner, who is a tribal, was convicted by the Sessions Court under Section 302 IPC for the murder of his five daughters and under Section 309 IPC and was imposed a sentence of death. On 12.09.2011, the Division Bench of the Madhya Pradesh High Court confirmed the death sentence passed on the petitioner who was represented on legal aid. On 09.01.2012, the petitioner, through legal aid, filed SLP (Crl.) Nos. 329-330 of 2012. This Court did not grant special leave and dismissed the SLP in limine.

233) On 02.02.2012, the petitioner sent a mercy petition through jail addressed to the President of India and the Governor of Madhya Pradesh.

The mercy petition, which was verified by the prison authorities, stated inter alia that the petitioner was suffering from mental illness and was continuously undergoing treatment through Central Jail, Bhopal.

234) On 20.02.2012, the Prison Superintendent, in accordance with Rule 377 of the Madhya Pradesh Prison Manual, submitted a form to the State Government. In column 18, it was stated that his conduct in prison was good. Against column 19, which was for the Prison Superintendent to opine on alteration of the petitioner’s sentence, the Superintendent opined as follows:

“Commutation of sentence is recommended”.

235) On 20.02.2012, the Prison Superintendent, in accordance with the Government Law and Judiciary Department Circular No. 4837/21 dated 13.12.1982 submitted to the State Government a form entitled “Required Information”. The entries made by the Superintendent in the said form stated inter alia that the petitioner is not a habitual criminal, he belongs to the weaker section of the society and he is of mental disorder and at present under treatment of Psychiatry Department Hamidia Hospital, Bhopal. Against Column No. 11 which seeks the Superintendent’s recommendations, it was stated that, “Commutation of Sentence is recommended”.

236) On 07.08.2012, Respondent No. 1 received the petitioner’s mercy petition forwarded by Respondent No. 2. There was a delay of six months in forwarding the mercy petition to Respondent No. 1 and no explanation was given by Respondent No. 2 in the counter affidavit.

237) On 31.08.2012, Respondent No. 1 wrote to Respondent No. 2 requesting the petitioner’s medical report since in the mercy petition, it was stated that the petitioner is suffering from mental illness. Respondent No. 1 also requested Respondent No. 2 to confirm whether the petitioner had filed a review petition in this Court against the dismissal of his SLP.

238) On 19.10.2012, Respondent No. 1 sent a reminder to Respondent No. 2 about the queries vide letter dated 31.08.2012. On 29.11.2012, Respondent No. 1 sent the second reminder to Respondent No. 2 about the queries. On 26.02.2013, Respondent No. 1 sent a third reminder to Respondent No. 2 about the same.

239) On 25.03.2013, the Jail Superintendent, Central Jail, Indore forwarded the medical report to Respondent No. 1 and it was also informed that the petitioner has not filed a review petition in this Court against the dismissal of his SLP.

240) On 06.06.2013, the Home Minister advised the President to reject the mercy petition. On 16.07.2013, the President rejected the petitioner’s mercy petition. There was no reference to the petitioner’s mental health report in the note prepared for approval of the President. Likewise, there was no reference to the fact that this Court had rejected the petitioner’s SLP in limine in a death case.

241) On 27.07.2013, the petitioner was orally informed by the prison authorities that his mercy petition has been rejected by the President of India. The petitioner was neither furnished with any official written communication regarding the rejection of his mercy petition by the President of India nor the petitioner was informed that his mercy petition has been rejected by the Governor.

242) On 27.07.2013, the Superintendent of the Central Prison, Jabalpur sent a letter to the Icchawar Police Station asking them to inform the petitioner’s family to meet the petitioner urgently.

243) On 07.08.2013, this Court stayed the execution of the petitioner in Writ Petition (Crl.) No. 136 of 2013 filed by PUDR. The details regarding delay in disposal of mercy petition are as follows:

|Delay by State to send mercy |2.02.2012 – |6 months | |petition to MHA |07.08.2012 | | |Total delay since mercy |2.02.2012 – |1 year 6 months| |petition was filed |27.07.2013 | | |Delay by State to send medical |31.08.2012 – |7 months | |report to MHA |25.03.2012 | | |Delay by President |7.08.2012 – |1 year | | |27.07.2013 | | Insofar as the delay is concerned, it cannot be claimed that the same is excessive though there is a delay of one year in disposal of mercy petition by the President. However, during the period of trial before the Sessions court and even after conviction, the petitioner was suffering from mental illness. This is clear from the note made by the Prison Superintendent who opined for alteration of petitioner’s sentence from death to life. This important aspect was not noted by the Home Ministry.

244) Another relevant event which was not noticed by the Home Ministry while considering the notes for approval of the President was that the petitioner filed SLP through legal aid and this Court did not grant special leave and dismissed the SLP in limine. As highlighted in the previous case, we reiterate that in case of death sentence, it is desirable to examine all the materials on record first hand in accordance with the time- bound practice of this Court and arrive at an independent conclusion on all the issues of fact and law irrespective of the findings of the trial court and the High Court. Such recourse was not adopted in this case. This was not highlighted in the notes prepared for the approval of the President.

As stated earlier, the summary prepared by the Ministry of Home Affairs for the President fails to consider the mental illness as well as the opinion offered by the Prison Superintendent in terms of the M.P. Prison Manual as a ground for commutation of sentence. For all these reasons, more particularly, with regard to his mental illness, we feel that ends of justice would be met by commuting the sentence of death into life imprisonment.

Writ Petition (Crl.) Nos. 139 and 141 of 2013 245) Shivu – death convict, aged about 31 years, hailing from Karnataka, has filed Writ Petition (Crl.) No. 139 of 2013. Jadeswamy, aged about 25 years, also hailing from Karnataka, has filed Writ Petition (Crl.) No. 141 of 2013. Both are challenging the rejection of their mercy petitions on various grounds. According to them, they are in custody for 11 years and 10 months.

246) Both the petitioners were convicted for an offence under Sections 302, 376 read with Section 34 IPC and were sentenced to death. On 07.11.2005, the Karnataka High Court confirmed the petitioners’ death sentence. On 13.02.2007, this Court dismissed their appeal and upheld the death sentence awarded to them.

247) On 27.02.2007, both the petitioners filed separate mercy petitions addressed to the Governor of Karnataka and the President of India through the Prison Superintendent.

248) On 21.03.2007, Respondent No. 1 wrote to Respondent No. 2 requesting to consider petitioners’ mercy petitions under Article 161 of the Constitution and, in the event of rejection, to send the mercy petition along with the recommendations, copies of the judgments, copies of the records of the case, etc. to Respondent No. 1 for consideration under Article 72 of the Constitution.

249) On 05.04.2007 and 09.05.2007, review petitions filed by the petitioners were dismissed.

250) On 10.08.2007, Respondent No. 2 informed Respondent No. 1 that the Governor has rejected the mercy petitions and forwarded the copy of the trial court judgment, the Supreme Court judgment and mercy petitions.

251) On 09.10.2007, Respondent No. 1 wrote to Respondent No. 2 requesting him to provide the judgment of the High Court, the police diary, the court proceedings and the English translation of the trial court judgment.

Respondent No. 2 sent some of these documents on 26.07.2012, i.e., after 4 years and 9 ½ months and the rest of the documents were sent on 03.12.2012, i.e., after 5 years and 2 months. There was also no explanation as to why Respondent No. 1 did not take steps to expedite the matter for such a long period.

252) On 03.04.2013, Respondent No. 1 advised the President to reject the mercy petitions. There was a delay of 5 years and 8 months after the Governor rejected the mercy petitions.

253) On 27.05.2013, the President returned the file along with the mercy petitions sent by Shivu’s mother and the members of the Badrayyanhalli Gram Panchayat.

254) On 24.06.2013, Respondent No. 1 advised the President to reject the mercy petitions. On 27.07.2013, the President rejected the petitioners’ mercy petitions.

255) On 13.08.2013, the petitioners were informed by the prison authorities that their mercy petitions have been rejected by the President.

On 16.08.2013, the local police visited the petitioners’ family members and informed that they would be executed at 6 a.m. on 22.08.2013 at Belgaum Central Prison. The said procedure was contrary to the Prison Manual. As per the present Rules, the execution can only be scheduled after 14 days of informing the prisoner of rejection of mercy petition and in this case the same was not being followed. The following are the details regarding delay in disposal of mercy petitions by the Governor and the President:

|Total custody period till date |15.10.2001 – |12 years 2 | | |17.12.2013 |months | |Period under sentence of death |29.07.2005 – |8 years 5 | | |17.12.2013 |months | |Total delay in deciding mercy |27.02.2007 – |6 ½ years | |petitions |13.08.2013 | | |Delay by the Governor |27.02.2007 – |6 months | | |10.08.2007 | | |Delay by the President |10.08.2007 – |6 years | | |13.08.2013 | | 256) It is true that there is some explanation in the affidavit filed on behalf of the State in respect of the time taken by the Governor for rejection of their mercy petitions, however, there is no acceptable/adequate reason for delay of six years at the hands of the Ministry of Home Affairs followed by the rejection order by the President.

257) Though learned counsel has referred to the fact that the trial court and the High Court followed certain decisions which were later held as per incuriam, in view of the fact that there is undue delay of six years which is one of the circumstances for commutation of sentence from death to life, we are not adverting to all other aspects.

258) We also perused the records of the Ministry of Home Affairs produced by learned ASG and the summary prepared for approval of the President.

There is no specific explanation in the summary prepared by the Ministry of Home Affairs for the President for the delay of six years. In view of the same and in the light of the principles enunciated in various decisions which we have adverted to in the earlier part of our judgment, we hold that the petitioners have made out a case for commutation of sentence.

Guidelines:

259) In W.P (Crl) No 56 of 2013, Peoples’ Union for Democratic Rights have pleaded for guidelines for effective governing of the procedure of filing mercy petitions and for the cause of the death convicts. It is well settled law that executive action and the legal procedure adopted to deprive a person of his life or liberty must be fair, just and reasonable and the protection of Article 21 of the Constitution of India inheres in every person, even death-row prisoners, till the very last breath of their lives.

We have already seen the provisions of various State Prison Manuals and the actual procedure to be followed in dealing with mercy petitions and execution of convicts. In view of the disparities in implementing the already existing laws, we intend to frame the following guidelines for safeguarding the interest of the death row convicts.

1. Solitary Confinement: This Court, in Sunil Batra (supra), held that solitary or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional. Almost all the prison Manuals of the States provide necessary rules governing the confinement of death convicts. The rules should not be interpreted to run counter to the above ruling and violate Article 21 of the Constitution.

2. Legal Aid: There is no provision in any of the Prison Manuals for providing legal aid, for preparing appeals or mercy petitions or for accessing judicial remedies after the mercy petition has been rejected. Various judgments of this Court have held that legal aid is a fundamental right under Article 21. Since this Court has also held that Article 21 rights inhere in a convict till his last breath, even after rejection of the mercy petition by the President, the convict can approach a writ court for commutation of the death sentence on the ground of supervening events, if available, and challenge the rejection of the mercy petition and legal aid should be provided to the convict at all stages. Accordingly, Superintendent of Jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from intimating the convicts.

3. Procedure in placing the mercy petition before the President: The Government of India has framed certain guidelines for disposal of mercy petitions filed by the death convicts after disposal of their appeal by the Supreme Court. As and when any such petition is received or communicated by the State Government after the rejection by the Governor, necessary materials such as police records, judgment of the trial court, the High Court and the Supreme Court and all other connected documents should be called at once fixing a time limit for the authorities for forwarding the same to the Ministry of Home Affairs. Even here, though there are instructions, we have come across that in certain cases the Department calls for those records in piece-meal or one by one and in the same way, the forwarding Departments are also not adhering to the procedure/instructions by sending all the required materials at one stroke. This should be strictly followed to minimize the delay. After getting all the details, it is for the Ministry of Home Affairs to send the recommendation/their views to the President within a reasonable and rational time. Even after sending the necessary particulars, if there is no response from the office of the President, it is the responsibility of the Ministry of Home Affairs to send periodical reminders and to provide required materials for early decision.

4. Communication of Rejection of Mercy Petition by the Governor: No prison manual has any provision for informing the prisoner or his family of the rejection of the mercy petition by the Governor. Since the convict has a constitutional right under Article 161 to make a mercy petition to the Governor, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the Governor should forthwith be communicated to the convict and his family in writing or through some other mode of communication available.

5. Communication of Rejection of the Mercy Petition by the President:

Many, but not all, prison manuals have provision for informing the convict and his family members of the rejection of mercy petition by the President. All States should inform the prisoner and their family members of the rejection of the mercy petition by the President.

Furthermore, even where prison manuals provide for informing the prisoner of the rejection of the mercy petition, we have seen that this information is always communicated orally, and never in writing.

Since the convict has a constitutional right under Article 72 to make a mercy petition to the President, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the President should forthwith be communicated to the convict and his family in writing.

6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor.

7. Minimum 14 days notice for execution: Some prison manuals do not provide for any minimum period between the rejection of the mercy petition being communicated to the prisoner and his family and the scheduled date of execution. Some prison manuals have a minimum period of 1 day, others have a minimum period of 14 days. It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution for the following reasons:- a) It allows the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs.

b) It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families.

It is the obligation of the Superintendent of Jail to see that the family members of the convict receive the message of communication of rejection of mercy petition in time.

8. Mental Health Evaluation: We have seen that in some cases, death-row prisoners lost their mental balance on account of prolonged anxiety and suffering experienced on death row. There should, therefore, be regular mental health evaluation of all death row convicts and appropriate medical care should be given to those in need.

9. Physical and Mental Health Reports: All prison manuals give the Prison Superintendent the discretion to stop an execution on account of the convict’s physical or mental ill health. It is, therefore, necessary that after the mercy petition is rejected and the execution warrant is issued, the Prison Superintendent should satisfy himself on the basis of medical reports by Government doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed. If the Superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the execution, and produce the prisoner before a Medical Board for a comprehensive evaluation and shall forward the report of the same to the State Government for further action.

10. Furnishing documents to the convict: Most of the death row prisoners are extremely poor and do not have copies of their court papers, judgments, etc. These documents are must for preparation of appeals, mercy petitions and accessing post-mercy judicial remedies which are available to the prisoner under Article 21 of the Constitution. Since the availability of these documents is a necessary pre-requisite to the accessing of these rights, it is necessary that copies of relevant documents should be furnished to the prisoner within a week by the prison authorities to assist in making mercy petition and petitioning the courts.

11. Final Meeting between Prisoner and his Family: While some prison manuals provide for a final meeting between a condemned prisoner and his family immediately prior to execution, many manuals do not. Such a procedure is intrinsic to humanity and justice, and should be followed by all prison authorities. It is therefore, necessary for prison authorities to facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution.

12. Post Mortem Reports: Although, none of the Jail Manuals provide for compulsory post mortem to be conducted on death convicts after the execution, we think in the light of the repeated arguments by the petitioners herein asserting that there is dearth of experienced hangman in the country, the same must be made obligatory.

In Deena alias Deen Dayal and Ors. vs. Union of India (1983) 4 SCC 645, the petitioners therein challenged the constitutional validity of Section 354(5) on the ground that hanging a convict by rope is a cruel and barbarous method of executing death sentence, which is violative of Article 21 of the Constitution. This court held as follows:- “7. ..After making this observation Bhagwati, J., proceeds thus :

The physical pain and suffering which the execution of the sentence of death involves is also no less cruel and inhuman.

In India, the method of execution followed is hanging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the Royal Commission on Capital Punishment 1949-53 found that hanging is the most humane method of execution and so also in Ichikawa v. Japan, the Japanese Supreme Court held that execution by hanging does not correspond to cruel punishment inhibited by Article 36 of the Japanese Constitution. But whether amongst all the methods of execution, hanging is the most humane or in view of the Japanese Supreme Court, hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly unaccompanied by intense physical torture and pain.” (emphasis supplied).

81. Having given our most anxious consideration to the central point of inquiry, we have come to the conclusion that, on the basis of the material to which we have referred extensively, the State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by Section 354(5) of the CrPC does not violate the guarantee right contained in Article 21 of the Constitution. The material before us shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner’s apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. The system of hanging, as now used, avoids to the full extent “the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop. The system is consistent,with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation of brutality of any kind.” It is obvious from a reading of the aforesaid decision that the method of hanging prescribed by Section 354(5) of the Code was held not violative of the guaranteed right under Article 21 of the Constitution on the basis of scientific evidence and opinions of eminent medical persons which assured that hanging is the least painful way of ending the life. However, it is the contention of learned counsel for the respondents that owing to dearth of experienced hangman, the accused are being hanged in violation of the due procedure.

260) By making the performance of post mortem obligatory, the cause of the death of the convict can be found out, which will reveal whether the person died as a result of the dislocation of the cervical vertebrate or by strangulation which results on account of too long a drop. Our Constitution permits the execution of death sentence only through procedure established by law and this procedure must be just, fair and reasonable. In our considered view, making post mortem obligatory will ensure just, fair and reasonable procedure of execution of death sentence.

Conclusion:

261) In the aforesaid batch of cases, we are called upon to decide on an evolving jurisprudence, which India has to its credit for being at the forefront of the global legal arena. Mercy jurisprudence is a part of evolving standard of decency, which is the hallmark of the society.

262) Certainly, a series of Constitution Benches of this Court have upheld the Constitutional validity of the death sentence in India over the span of decades but these judgments in no way take away the duty to follow the due procedure established by law in the execution of sentence. Like the death sentence is passed lawfully, the execution of the sentence must also be in consonance with the Constitutional mandate and not in violation of the constitutional principles.

263) It is well established that exercising of power under Article 72/161 by the President or the Governor is a constitutional obligation and not a mere prerogative. Considering the high status of office, the Constitutional framers did not stipulate any outer time limit for disposing the mercy petitions under the said Articles, which means it should be decided within reasonable time. However, when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect. Right to seek for mercy under Article 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Every Constitutional duty must be fulfilled with due care and diligence; otherwise judicial interference is the command of the Constitution for upholding its values.

264) Remember, retribution has no Constitutional value in our largest democratic country. In India, even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same. Therefore, we make it clear that when the judiciary interferes in such matters, it does not really interfere with the power exercised under Article 72/161 but only to uphold the de facto protection provided by the Constitution to every convict including death convicts.

265) In the light of the above discussion and observations, we dispose of the writ petitions. In the cases of Suresh, Ramji, Bilavendran, Simon, Gnanprakasam, Madiah, Praveen Kumar, Gurmeet Singh, Sonia, Sanjeev, Sundar Singh, Jafar Ali, Magan Lal Berala, Shivu and Jadeswamy, we commute the death sentence into imprisonment for life. All the writ petitions are, accordingly, allowed on the above terms.

……….…………………………CJI.
(P. SATHASIVAM)
……….……………………………J.
(RANJAN GOGOI)
..….….……………………………J.
(SHIVA KIRTI SINGH)

NEW DELHI;
JANUARY 21, 2014.

The post Shatrughan Chauhan & Anr vs. Union of India appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1205 OF 2014

Yogendra Yadav & Ors. … Appellants
Vs.
The State of Jharkhand & Anr. … Respondents

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1. The appellants are original Accused Nos.1 to 3 respectively in P.S. Meharma Case No.155 of 2004 registered under Sections 341, 323, 324, 504 and 307 read with Section 34 of the Indian Penal Code (for short, ‘the IPC’). The FIR was lodged on 23/09/1994 by complainant Anil Mandal alleging that the appellants assaulted him and his men on 22/09/2004. On the same day the appellants also filed FIR in respect of the same incident dated 22/09/2004 alleging that complainant Anil Mandal, Baldev Mandal and others assaulted them. This FIR was registered at P.S. Meharma being Case No.156 of 2004 under Sections 147, 148, 149, 448, 341, 323 and 380 of the IPC.

2. In both the cases, after investigation, charge-sheet was submitted.

While the cases were going on before the 2nd Additional Sessions Judge, Godda, both the parties agreed to compromise the cases. A Panchayat was held where with the intervention of the well-wishers a compromise was arrived at. A compromise petition dated 16/11/2011 was signed by both the parties and it was filed in the Court of 2nd Additional Sessions Judge, Godda. An application was filed under Section 231(2) read with Section 311 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) being S.C.

No. 9/05 for recalling PWs 1 to 6 for further cross-examination on the point of compromise.

3. Learned Additional Sessions Judge by his order dated 16/11/2011 disposed of the said application. Learned Additional Sessions Judge observed that compromise petition was signed by the informant and the injured, their signatures were identified by the lawyers and, therefore, the compromise was genuine. He, however, observed that offences under Sections 324, 341, 323 of the IPC are compoundable with the permission of the court and offences under Sections 326, 307 read with Section 34 of the IPC are non-compoundable. He, therefore, accepted the application in respect of offences under Sections 323, 324 and 341 of the IPC. The said offences were compounded and the accused were acquitted of the same.

Prayer for compounding of offences under Sections 326, 307 read with Section 34 of the IPC was rejected. Learned Additional Sessions Judge rejected the application for recalling of witnesses. He directed that the case should proceed against the accused for offences under Sections 326, 307 read with Section 34 of the IPC. This order was challenged by the appellants in the High Court of Jharkhand. By the impugned order the High Court dismissed the challenge, hence, this appeal.

4. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 of the IPC which are non- compoundable. Needless to say that offences which are non-compoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab[1]). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace.

5. In Gian Singh this Court has observed that where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. Needless to say that the above observations are applicable to this Court also.

6. Learned counsel for the parties have requested this Court that the impugned order be set aside as the High Court has not noticed the correct position in law in regard to quashing of criminal proceedings when there is a compromise. Affidavit has been filed in this Court by complainant-Anil Mandal, who is respondent No. 2 herein. In the affidavit he has stated that a compromise petition has been filed in the lower court. It is further stated that he and the appellants are neighbours, that there is harmonious relationship between the two sides and that they are living peacefully. He has further stated that he does not want to contest the present appeal and he has no grievance against the appellants. Learned counsel for the parties have confirmed that the disputes between the parties are settled; that parties are abiding by the compromise deed and living peacefully. They have urged that in the circumstances pending proceedings be quashed. State of Jharkhand has further filed an affidavit opposing the compromise. The affidavit does not persuade us to reject the prayer made by the appellant and the second respondent for quashing of the proceedings.

7. In view of the compromise and in view of the legal position which we have discussed hereinabove, we set aside the impugned order dated 4/7/2012 and quash the proceedings in S.C.No.9/05 pending on the file of 2nd Additional Sessions Judge, Godda. The appeal is disposed of.

………………………………J.
(Ranjana Prakash Desai)

………………………………J.
(N.V. Ramana)

New Delhi;
July 21, 2014.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1498 OF 2014
[Arising out of Special Leave Petition (Crl.) No.8795 of 2012]

Manohar Singh … Appellant
Vs.
State of Madhya Pradesh & Anr. … Respondents

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. The appellant is original Accused No. 3. He was tried along with his father Hukum Singh ‘“ original Accused No. 1 and his mother Prem Bai ‘“ original Accused No. 2 by the Judicial Magistrate, Dewas (Madhya Pradesh) in Crime Case No. 1680/2009 for offences punishable under Section 498A of the Indian Penal Code (for short, ‘the IPC’) and Section 4 of the Dowry Prohibition Act, 1961 (for short, ‘the Dowry Act’). By judgment and order dated 29/9/2010 learned Magistrate acquitted the appellant and the other two accused. Being aggrieved by this order the State of Madhya Pradesh preferred appeal in the Sessions Court, Dewas being Criminal Appeal No.12/2011. The Sessions Court set aside the order of acquittal and convicted the appellant and two others under Section 498-A of the IPC and sentenced them to undergo two years rigorous imprisonment each and to pay a fine of Rs.500/- each. For offence under Section 4 of the Dowry Act each of them was sentenced to rigorous imprisonment for two years and to pay a fine of Rs.500/- each, in default, to undergo simple imprisonment for two months each.

3. Being aggrieved by the said judgment and order, the accused carried criminal revision to the High Court of Madhya Pradesh. The High Court by the impugned order set aside the conviction and sentence of original Accused Nos. 1 and 2 i.e. the father and mother of the appellant. The conviction of the appellant was, however, confirmed. His sentence was reduced to six months and fine of Rs.500/- on each count. Both the substantive sentences were to run concurrently. Being aggrieved by this judgment the appellant filed the present appeal.

4. On 21/1/2013 the appellant sought permission to implead the complainant i.e. his wife Reena as respondent No. 2. A statement was made that the appellant was willing to pay monetary compensation to his wife in lieu of substantive sentence of imprisonment. Permission to implead the complainant-wife Reena was granted. The appellant was directed to deposit Rs.25,000/- as litigation expenses. Respondent No. 2 was permitted to withdraw the said amount unconditionally. Subject to deposit, notice was issued to respondent No. 2 to consider whether the appellant can be asked to pay some suitable monetary compensation to respondent No. 2 in lieu of substantive sentence of imprisonment. On 24/3/2014 counsel for the appellant made a statement that the matter is likely to be settled. We directed respondent No. 2 ‘“ wife to remain present in the Court on 28/3/2014. Accordingly on 28/03/2014 she remained present in the Court.

She stated that if the appellant pays her Rs.2,50,000/- (Rupees two lacs fifty thousand only) as compensation, she is ready to settle the matter.

This Court, therefore, directed the appellant to bring a demand draft of Rs.2,50,000/- in the name of Reena (respondent No. 2). This Court noted that the said demand draft can be given to her in case after hearing the parties and considering the legal position, this Court permits settlement at this stage.

5. We have heard learned counsel for the appellant, learned counsel for the State of Madhya Pradesh and learned counsel for respondent No. 2.

Learned counsel for the appellant and learned counsel for respondent No. 2 have requested the Court to show leniency in view of the settlement.

Counsel for the State of Madhya Pradesh has opposed this prayer.

6. Section 498-A of the IPC is non-compoundable. Section 4 of the Dowry Act is also non-compoundable. It is not necessary to state that non- compoundable offences cannot be compounded by a Court. While considering the request for compounding of offences the Court has to strictly follow the mandate of Section 320 of the Code. It is, therefore, not possible to permit compounding of offences under Section 498-A of the IPC and Section 4 of the Dowry Act. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are non-compoundable, because such offences are personal in nature and do not have repercussions on the society unlike heinous offences like murder, rape etc. (See Gian Singh v. State of Punjab[2]). If the High Court forms an opinion that it is necessary to quash the proceedings to prevent abuse of the process of any court or to secure ends of justice, the High Court can do so. The inherent power of the High Court under Section 482 of the Code is not inhibited by Section 320 of the Code. Needless to say that this Court can also follow such a course.

7. In Narinder Singh v. State of Punjab[3], this Court was dealing with a situation where the accused was charged for offence punishable under Section 307 of the IPC, which is a non-compoundable offence. The parties arrived at a compromise at the stage of recording of evidence. A petition was filed under Section 482 of the Code for quashing of the proceedings in view of the compromise. The High Court refused to quash the proceedings.

This Court set aside the High Court’s order and quashed the proceedings in view of the compromise. While doing so, this Court laid down certain guidelines. In Guideline No.(VII), this Court considered a situation where a conviction is recorded by the trial court for offence punishable under Section 307 of the IPC and the matter is at appellate stage. This Court observed that in such cases, a mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. This Court observed that in such cases where charge is proved under Section 307 of the IPC and conviction is already recorded of a heinous crime, there was no question of sparing a convict found guilty of such a crime. The observation of this Court must be read obviously in the context of a non-compoundable offence under Section 307 of the IPC. It is trite that a non-compoundable offence cannot be compounded at any stage (See Gyan Singh v. State of Punjab[4]).

However, a compoundable offence can be compounded in view of a compromise, if the Court finds it proper to do so even after conviction if the appeal is pending.

8. In this case, the appellant is convicted under Section 498-A of the IPC and sentenced to undergo six months imprisonment. He is convicted under Section 4 of the Dowry Act and sentenced to undergo six months imprisonment. Substantive sentences are to run concurrently. Even though the appellant and respondent No. 2-wife have arrived at a compromise, the order of conviction cannot be quashed on that ground because the offences involved are non-compoundable. However, in such a situation if the court feels that the parties have a real desire to bury the hatchet in the interest of peace, it can reduce the sentence of the accused to the sentence already undergone. Section 498-A of the IPC does not prescribe any minimum punishment. Section 4 of the Dowry Act prescribes minimum punishment of six months but proviso thereto states that the Court may, for adequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may be less than six months.

Therefore, sentence of the appellant can be reduced to sentence already undergone by him.

9. Now the question is whether a case for reduction of sentence is made out particularly when the appellant has undergone only seven days sentence out of six months sentence imposed on him. We see no reason why in this case we should not reduce the appellant’s sentence to sentence already undergone by him. There can be no doubt about the genuine nature of compromise between the appellant and respondent No.2-wife. The appellant has offered to pay a sum of Rs.2,50,000/- to respondent No.2-wife as compensation. A demand draft drawn in the name of respondent No.2 is brought to the Court. As directed by us even litigation costs of Rs.25,000/- has been deposited by the appellant in the Court. Respondent No.2-wife has appeared in this Court on more than one occasion and requested this Court to take compromise into consideration and pass appropriate orders. Learned counsel for the parties have requested us to take a kindly view of the matter. The affidavit filed by the State of Madhya Pradesh opposing the prayer of the parties does not impress us.

10. We must also note that the trial court had acquitted the appellant.

Though the Sessions Court reversed the order and convicted the appellant for two years, the High Court reduced the sentence to six months. The appellant and respondent No.2 were married in 2007. About seven years have gone by. Considering all these circumstances, in the interest of peace and amity, we are of the opinion that the appellant’s sentence must be reduced to sentence already undergone by him.

11. In the circumstances, the appeal is partly allowed. The conviction of the appellant under Section 498-A of the IPC and under Section 4 of the Dowry Act is maintained but the sentence awarded to the appellant is reduced to sentence already undergone by him, subject to the condition that the appellant pays a sum of Rs.2,50,000/- (Rupees two lacs fifty thousand only) to respondent No.2-wife as compensation. Impugned order stands modified to the above extent.

12. We must note that a Demand Draft in the sum of Rs.2,50,000/- drawn in the name of respondent No.2 Reena has been handed over to her counsel by learned counsel for the appellant on 18/7/2014.

13. In view of this, bail bond of the appellant, if any, stands discharged.

………………………………J.
(Ranjana Prakash Desai)

………………………………J.
(N.V. Ramana)

New Delhi;
July 21, 2014.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1169 OF 2014

SATHIYAMOORTHY AND ORS. …Appellants
Versus
STATE REPRESENTED BY THE INSPECTOR OF POLICE, MADURAI …Respondent

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1. The appellants who are original Accused Nos. 1 to 6 respectively were tried in the court of Additional District and Sessions Judge, Madurai in Sessions Case No.444 of 2005 for various offences under the Indian Penal Code (for short, ‘the IPC’) on the allegation that on 11/11/2004 at about 8.00 p.m. when complainant Ayyanar and his son Murugesan were standing at a common place all the accused came there and formed an unlawful assembly with deadly weapons. Accused No. 2 unlawfully restrained Murugesan.

Accused No. 1 attacked complainant-Ayyanar with an iron rod. He also attacked Murugesan with an aruval. Complainant Ayyanar lodged the FIR.

2. After completion of investigation, the accused were sent up for trial. At the trial the prosecution examined 16 witnesses. The accused denied the prosecution case. Learned Additional District and Sessions Judge found Accused Nos. 1 to 6 guilty under Section 148 of the IPC. He sentenced each of them to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- each, in default, to undergo two months rigorous imprisonment. Accused No. 1 was found guilty under Section 325 of the IPC and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for three months. Accused No. 2 was found guilty under Section 341 of the IPC and was sentenced to undergo three months rigorous imprisonment and to pay a fine of Rs.200/-, in default, to undergo four weeks rigorous imprisonment. Accused No. 2 was also found guilty under Section 325 read with Section 149 of the IPC and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for six months. Accused Nos. 3 to 6 were found guilty under Section 325 read with Section 149 of the IPC. Each of them was sentenced to rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each, in default, to undergo rigorous imprisonment for six months. Substantive sentences were to run concurrently.

3. Being aggrieved by the said conviction and sentence the appellants- accused preferred an appeal to the High Court. By the impugned order the High Court partly allowed the appeal. The order of conviction passed by the trial court was confirmed. However, the sentence imposed under Section 325 of the IPC on Accused No. 1, sentence imposed under Section 325 read with Section 149 of the IPC on Accused No. 2 and sentence imposed under Section 325 read with Section 149 of the IPC on Accused Nos. 3 to 6 was reduced to two years rigorous imprisonment instead of three years rigorous imprisonment. Rest of the order of the trial court was confirmed. Being aggrieved by the judgment and order, the appellants-accused have filed the present appeal.

4. During the pendency of the appeal on 25/04/2014 victim-Murugesan remained present in this Court. He had filed an application for impleadment which was granted. He stated that he would like to compound the offences. That statement was recorded and the matter was adjourned to consider the prayer. An application has been filed by the appellants praying that offences may be permitted to be compounded. It is stated in the application that victim Murugesan and the accused are cousins and they have decided to settle the disputes amicably. It is further stated that pursuant to this decision the accused have paid a reasonable amount to victim Murugesan as per the decision of family elders and they have entered into an amicable settlement in their village much before the accused surrendered as per the orders of this Court. A copy of the statement of victim Murugesan dated 30/9/2012 stating that he has entered into a compromise with the accused is annexed to the application.

5. We have heard learned counsel for the appellants-accused, Mr. Luthra, learned Additional Solicitor General (AC) and learned counsel for the State of Tamil Nadu. They confirmed that parties have entered into a compromise.

They submitted that in view of the settlement, this Court may compound the offences as that will accord a quietus to all disputes between the parties.

Counsel submitted that the accused and the complainant are cousins. After the compromise they have been staying peacefully in the village. It is in the interest of both sides to bury the hatchet and lead a peaceful life.

6. Offences under Sections 341 and 325 are compoundable. In view of the settlement they can be permitted to be compounded. However, offences under Sections 148 and 149 of the IPC are not compoundable. Hence, permission to compound them cannot be granted. However, since the accused and the victim have entered into a compromise, we feel that it would be in the interest of both sides to reduce the sentence awarded to the accused under Sections 325 and 341 of the IPC to the sentence already undergone.

7. In Ram Lal and anr. v. State of J & K[5] the accused were convicted for offence under Section 326 of the IPC, which is non- compoundable. Looking to the fact that the parties had arrived at a settlement and victim had no grievance, this Court reduced the sentence for the offence under Section 326 to sentence already undergone by the appellants-accused. We are inclined to follow similar course.

8. In the result, the appeal is partly allowed. The offences under Sections 341 and 325 of the IPC, for which the appellants are convicted, are permitted to be compounded because they are compoundable. The appellants are acquitted of the said offences. The appellants are stated to have undergone more than six months imprisonment. So far as offences under Sections 148 and 149 of the IPC are concerned, the conviction of the appellants for the said offences is reduced to the sentence already undergone by them subject to the appellants paying Rs.30,000/- as compensation to victim-Murugesan. Compensation be paid within three months from the date of this judgment.

9. This Court has already released the appellants on bail. In view of this order the bail bonds of the appellants are discharged subject to payment of compensation of Rs.30,000/- as directed by us. If compensation is not paid consequences will follow.

………………………………J.
(Ranjana Prakash Desai)

………………………………J.
(N.V. Ramana)

New Delhi;
July 21, 2014.

[1] (2012) 10 SCC 303 [2] (2012) 10 SCC 303 [3] JT 2014 (4) SC 573 [4] (2012) 10 SCC 303 [5] (1999) 2 SCC 213

The post Yogendra Yadav & Ors. Vs. The State of Jharkhand & Anr. appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.686/2014
(arising out of S.L.P.(Criminal) No.9547 of 2013)

Narinder Singh & Ors. ……Appellants
Vs.
State of Punjab & Anr. …Respondents

J U D G M E N T

A.K.SIKRI,J.

1. The present Special Leave Petition has been preferred against the impugned judgment/final order dated 8.10.2013 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Miscellaneous Petition No.27343/2013. It was a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the “Code”) for quashing of FIR No.121/14.7.2010 registered under Sections 307/324/323/34,IPC, on the basis of compromise dated 22.7.2013 entered into between the petitioners ( who are accused in the said FIR) and respondent No.2 (who is the complainant). The High Court has refused to exercise its extraordinary discretion invoking the provisions of Section 482 of the Code on the ground that four injuries were suffered by the complainant and as per the opinion of the Doctor, injury No.3 were serious in nature. The High Court, thus, refused to accept the compromise entered into between the parties, the effect whereof would be that the petitioners would face trial in the said FIR.

2. Leave granted.

3. We have heard counsel for the parties at length.

4. It may be stated at the outset that the petitioners herein, who are three in number, have been charged under various provisions of the IPC including for committing offence punishable under Section 307, IPC i.e. attempt to commit murder. FIR No.121/14.7.2010 was registered.

In the aforesaid FIR, the allegations against the petitioners are that on 9.7.2010 at 7.00 A.M. while respondent No.2 was going on his motorcycle to bring diesel from village Lapoke, Jasbir Singh, Narinder Singh both sons of Baldev Singh and Baldev Singh son of Lakha Singh attacked him and injured him. Respondent No.2 was admitted in Shri Guru Nanak Dev Hospital, Amritsar. After examination the doctor found four injuries on his person. Injury No.1 to 3 are with sharp edged weapons and injury No.4 is simple. From the statement of injured and MLR’s report, an FIR under sections 323/324/34 IPC was registered.

After X-ray report relating to injury No.3, section 307 IPC was added in the FIR

5. After the completion of investigation, challan has been presented in the Court against the petitioners and charges have also been framed. Now the case is pending before the Ld.Trial Court, Amritsar, for evidence.

6. During the pendency of trial proceedings, the matter has been compromised between the petitioners as well as the private respondent with the intervention of the Panchayat on 12.07.2013. It is clear from the above that three years after the incident, the parties compromised the matter with intervention of the Panchayat of the village.

7. It is on the basis of this compromise, the petitioners moved aforesaid criminal petition under section 482 of the Code for quashing of the said FIR. As per the petitioners, the parties have settled the matter, as they have decided to keep harmony between them to enable them to live with peace and love. The compromise records that they have no grudge against each other and the complainant has specifically agreed that he has no objection if the FIR in question is quashed.

Further, both the parties have undertaken not to indulge in any litigation against each other and withdraw all the complaints pending between the parties before the court. As they do not intend to proceed with any criminal case against each other, on that basis the submission of the petitioners before the High Court was that the continuance of the criminal proceedings in the aforesaid FIR will be a futile exercise and mere wastage of precious time of the court as well as investigating agencies.

8. The aforesaid submission, however, did not impress the High Court as the medical report depicts the injuries to be of grievous nature. The question for consideration, in these circumstances, is as to whether the court should have accepted the compromise arrived at between the parties and quash the FIR as well as criminal proceedings pending against the petitioner.

9. The ld. counsel for the State has supported the aforesaid verdict of the High Court arguing that since offence under Section 307 is non-compoundable, the respondents could not have been acquitted only because of the reason that there was a compromise/settlement between the parties. In support, the learned counsel for the respondent-State has relied upon the judgment of this Court in the case of Rajendra Harakchand Bhandari vs. State of Maharashtra (2011) 13 SCC 311 wherein this Court held that since offence under Section 307 is not compoundable, even when the parties had settled the matter, compounding of the offence was out of question. Said settlement along with other extenuating circumstances was only taken as the ground for reduction of the sentence in the following manner:

“We must immediately state that the offence under Section 307 is not compoundable in terms of Section 320(9) of the Code of Criminal Procedure, 1973 and, therefore, compounding of the offence in the present case is out of question.

However, the circumstances pointed out by the learned Senior Counsel do persuade us for a lenient view in regard to the sentence. The incident occurred on 17.5.1991 and it is almost twenty years since then. The appellants are agriculturists by occupation and have no previous criminal background. There has been reconciliation amongst parties; the relations between the appellants and the victim have become cordial and prior to the appellants’ surrender, the parties have been living peacefully in the village. The appellants have already undergone the sentence of more than two-and-a half years.

Having regard to those circumstances, we are satisfied that ends of justice will be met if the substantive sentence awarded to the appellants is reduced to the period already undergone while maintaining the amount of fine.

Consequently, while confirming the conviction of the appellants for the offences punishable under Section 307 read with Section 34, Section 332 read with Section 34 and Section 353 read with Section 34, the substantive sentence awarded to them by the High Court is reduced to the period already undergone. The fine amount and the default stipulation remain as it is.”

10. The learned counsel for the appellant, on the other hand, submitted that merely because an offence is non-compoundable under Section 320 of the Code would not mean that the High Court is denuded of its power to quash the proceedings in exercising its jurisdiction under Section 482 of the Cr.P.C. He argued that Section 320(9) of the Code cannot limit or affect the power of the High Court under Section 482 of the Cr.P.C. Such a power is recognized by the Supreme Court in catena of judgments. He further submitted that having regard to the circumstances in the present case where the fight had occurred on the spot in the heat of the moment inasmuch as both sides were verbally fighting when the petitioners had struck the victim, this assault was more of a crime against the individual than against the society at large. He further submitted that this Court in Dimpey Gujral v. Union Territory through Administrator 2012 AIR SCW 5333 had quashed the FIR registered under sections 147,148,149,323,307,452 and 506 of the IPC.

11. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary power to refuse to compound the offence.

However, compounding under Section 320(1) of the Code is permissible only in minor offences or in non-serious offences. Likewise, when the parties reach settlement in respect of offences enumerated in Section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. In so far as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed.

Contours of these powers were described by this Court in B.S.Joshi vs.

State of Haryana (2003) 4 SCC 675 which has been followed and further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter.

12. At the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to Court under Section 320 of the Code and quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction conferred upon it under Section 482 of the Code. Once, it is found that compounding is permissible only if a particular offence is covered by the provisions of Section 320 of the Code and the Court in such cases is guided solitary and squarely by the compromise between the parties, in so far as power of quashing under Section 482 of the Code is concerned, it is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate consequence may be acquittal or dismissal of indictment. Such a distinction is lucidly explained by a three-Judge Bench of this Court in Gian Singh vs. State of Punjab & Anr. (2012) 10 SCC 303. Justice Lodha, speaking for the Court, explained the difference between the two provisions in the following manner:

“Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.

B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482.

Can it be said that by quashing criminal proceedings in B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment.”

13. Apart from narrating the interplay of Section 320 and Section 482 of the Code in the manner aforesaid, the Court also described the extent of power under Section 482 of the Code in quashing the criminal proceedings in those cases where the parties had settled the matter although the offences are not compoundable. In the first instance it was emphasized that the power under Sec. 482 of the Code is not to be resorted to, if there is specific provision in the Code for redressal of the grievance of an aggrieved party. It should be exercised very sparingly and should not be exercised as against the express bar of law engrafted in any other provision of the Code. The Court also highlighted that in different situations, the inherent power may be exercised in different ways to achieve its ultimate objective.

Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice, is a sine qua non.

14. As to under what circumstances the criminal proceedings in a non- compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines:

“Where the High Court quashes a criminal proceeding having regard to the facts that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc.

or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all.

However, certain offences which overwhelmingly and predominantly bear civil flavor having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard- and-fast category can be prescribed.” Thereafter, the Court summed up the legal position in the following words:

“The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guidelines engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse f the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act, or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences.

But the criminal cases having overwhelmingly and predominatingly civil flavor stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

15. The Court was categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statute, like the Prevention of Corruption Act or the offences committed by Public Servant while working in that capacity. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such heinous crime cannot have imprimatur of the Court.

16. The question is as to whether offence under Section 307 IPC falls within the aforesaid parameters. First limb of this question is to reflect on the nature of the offence. The charge against the accused in such cases is that he had attempted to take the life of another person (victim). On this touchstone, should we treat it a crime of serious nature so as to fall in the category of heinous crime, is the poser.

17. Finding an answer to this question becomes imperative as the philosophy and jurisprudence of sentencing is based thereupon. If it is heinous crime of serious nature then it has to be treated as a crime against the society and not against the individual alone. Then it becomes the solemn duty of the State to punish the crime doer. Even if there is a settlement/compromise between the perpetrator of crime and the victim, that is of no consequence. Law prohibits certain acts and/or conduct and treats them as offences. Any person committing those acts is subject to penal consequences which may be of various kind. Mostly, punishment provided for committing offences is either imprisonment or monetary fine or both. Imprisonment can be rigorous or simple in nature. Why those persons who commit offences are subjected to such penal consequences? There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing. Whereas in various countries, sentencing guidelines are provided, statutorily or otherwise, which may guide Judges for awarding specific sentence, in India we do not have any such sentencing policy till date. The prevalence of such guidelines may not only aim at achieving consistencies in awarding sentences in different cases, such guidelines normally prescribe the sentencing policy as well namely whether the purpose of awarding punishment in a particular case is more of a deterrence or retribution or rehabilitation etc.

18. In the absence of such guidelines in India, Courts go by their own perception about the philosophy behind the prescription of certain specified penal consequences for particular nature of crime. For some deterrence and/or vengeance becomes more important whereas another Judge may be more influenced by rehabilitation or restoration as the goal of sentencing. Sometimes, it would be a combination of both which would weigh in the mind of the Court in awarding a particular sentence. However, that may be question of quantum.

What follows from the discussion behind the purpose of sentencing is that if a particular crime is to be treated as crime against the society and/or heinous crime, then the deterrence theory as a rationale for punishing the offender becomes more relevant, to be applied in such cases. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter other effectively as it amounts to greatest good of the greatest number of persons in a society. It is in this context that we have to understand the scheme/philosophy behind Section 307 of the Code.

19. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the Court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the Court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. At times it is to satisfy the element of “emotion” in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter-se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences etc.

would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where “correctional” objective of criminal law would have to be given more weightage in contrast with “deterrence” philosophy.

Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the Court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two inflicting interests which is to be achieved by the Court after examining all these parameters and then deciding as to which course of action it should take in a particular case.

20. We may comment, at this stage, that in so far as the judgment in the case of Bhandari (supra) is concerned, undoubtedly this Court observed that since offence under Section 307 is not compoundable in terms of Section 320(9) of the Cr.P.C., compounding of the offence was out of question. However, apart from this observation, this aspect is not discussed in detail. Moreover, on reading para 12 of the said judgment, it is clear that one finds that counsel for the appellant in that case had not contested the conviction of the appellant for the offence under Section 307 IPC, but had mainly pleaded for reduction of sentence by projecting mitigating circumstances.

21. However, we have some other cases decided by this Court commenting upon the nature of offence under Section 307 of IPC. In Dimpey Gujral case (supra), FIR was lodged under sections 147,148,149,323,307,552 and 506 of the IPC. The matter was investigated and final report was presented to the Court under Section 173 of the Cr.P.C. The trial court had even framed the charges. At that stage, settlement was arrived at between parties. The court accepted the settlement and quashed the proceedings, relying upon the earlier judgment of this Court in Gian Singh vs. State of Punjab &

Anr. 2012 AIR SCW 5333 wherein the court had observed that inherent powers under section 482 of the Code are of wide plentitude with no statutory limitation and the guiding factors are: (1) to secure the needs of justice, or (2) to prevent abuse of process of the court.

While doing so, commenting upon the offences stated in the FIR, the court observed:

“Since the offences involved in this case are of a personal nature and are not offences against the society, we had enquired with learned counsel appearing for the parties whether there is any possibility of a settlement. We are happy to note that due to efforts made by learned counsel, parties have seen reason and have entered into a compromise.” This Court, thus, treated such offences including one under section 307, IPC were of a personal nature and not offences against the society.

22. On the other hand, we have few judgments wherein this Court refused to quash the proceedings in FIR registered under section 307 IPC etc. on the ground that offence under section 307 was of serious nature and would fall in the category of heinous crime. In the case of Shiji vs. Radhika & Anr. (2011) 10 SCC 705 the Court quashed the proceedings relating to an offence under section 354 IPC with the following observations:

“We have heard learned counsel for the parties and perused the impugned order. Section 320 of the Cr.P.C. enlists offences that are compoundable with the permission of the Court before whom the prosecution is pending and those that can be compounded even without such permission. An offence punishable under Section 354 of the IPC is in terms of Section 320(2) of the Code compoundable at the instance of the woman against whom the offence is committed. To that extent, therefore, there is no difficulty in either quashing the proceedings or compounding the offence under Section 354, of which the appellants are accused, having regard to the fact that the alleged victim of the offence has settled the matter with the alleged assailants. An offence punishable under Section 394 IPC is not, however, compoundable with or without the permission of the Court concerned. The question is whether the High Court could and ought to have exercised its power under section 482 the said provision in the light of the compromise that the parties have arrived at.” 23. In a recent judgment in the case of State of Rajasthan vs.

Shambhu Kewat & Ors. 2013 (14) SCALE 235, this very Bench of the Court was faced with the situation where the High Court had accepted the settlement between the parties in an offence under Section 307 read with Section 34 IPC and set the accused at large by acquitting them. The settlement was arrived at during the pendency of appeal before the High Court against the order of conviction and sentence of the Sessions Judge holding the accused persons guilty of the offence under Section307/34 IPC. Some earlier cases of compounding of offence under Section 307 IPC were taken note of, noticing under certain circumstances, the Court had approved the compounding whereas in certain other cases such a course of action was not accepted. In that case, this Court took the view that High Court was not justified in accepting the compromise and setting aside the conviction. While doing so, following discussion ensued:

“We find, in this case, such a situation does not arise.

In the instant case, the incident had occurred on 30.10.2008.

The trial court held that the accused persons, with common intention, went to the shop of the injured Abdul Rashid on that day armed with iron rod and a strip of iron and, in furtherance of their common intention, had caused serious injuries on the body of Abdul Rashid, of which injury number 4 was on his head, which was of a serious nature.

Dr.Rakesh Sharma, PW5, had stated that out of the injuries caused to Abdul Rashid, injury No.4 was an injury on the head and that injury was “grievous and fatal for life”. PW8, Dr. Uday Bhomik, also opined that a grievous injury was caused on the head of Abdul Rashid. DR. Uday conducted the operation on injuries of Abdul Rashid as a Neuro Surgeon and fully supported the opinion expressed by PW5 Dr. Rakesh Sharma that injury No.4 was “grievous and fatal for life”.

We notice that the gravity of the injuries was taken note of by the Sessions Court and it had awarded the sentence of 10 years rigorous imprisonment for the offence punishable under Section 307 IPC, but not by the High Court. The High Court has completely overlooked the various principles laid down by this Court in Gian Singh (Supra), and has committed a mistake in taking the view that, the injuries were caused on the body of Abdul Rashid in a fight occurred at the spur and the heat of the moment. It has been categorically held by this Court in Gian Singh (supra) that the Court, while exercising the power under Section 482, must have “due regard to the nature and gravity of the crime” and “the social impact”. Both these aspects were completely overlooked by the High Court. The High Court in a cursory manner, without application of mind, blindly accepted the statement of the parties that they had settled their disputes and differences and took the view that it was a crime against “an individual”, rather than against “the society at large”.

We are not prepared to say that the crime alleged to have been committed by the accused persons was a crime against an individual, on the other hand it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social control and its purpose is the regulation of conduct and activities within the society. Why Section 307 IPC is held to be non-compoundable, because the Code has identified which conduct should be brought within the ambit of non-compoundable offences.

Such provisions are not meant, just to protect the individual, but the society as a whole. High Court was not right in thinking that it was only an injury to the person and since the accused persons had received the monetary compensation and settled the matter, the crime as against them was wiped off. Criminal justice system has a larger objective to achieve, that is safety and protection of the people at large and it would be a lesson not only to the offender, but to the individuals at large so that such crimes would not be committed by any one and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious offence like the present, will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful co-existence and welfare of the society at large.”

24. Thus, we find that in certain circumstances, this Court has approved the quashing of proceedings under section 307,IPC whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts, at the same time this Court owes an explanation as to why two different approaches are adopted in various cases. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the Constitution of India. Stare Decisis is the fundamental principle of judicial decision making which requires ‘certainty’ too in law so that in a given set of facts the course of action which law shall take is discernable and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way, it achieves equality of treatment as well, inasmuch as two different persons faced with similar circumstances would be given identical treatment at the hands of law. It has, therefore, support from the human sense of justice as well. The force of precedent in the law is heightened, in the words of Karl Llewellyn, by “that curious, almost universal sense of justice which urges that all men are to be treated alike in like circumstances”.

25. As there is a close relation between the equality and justice, it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind, we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. We make it clear that though there would be a general discussion in this behalf as well, the matter is examined in the context of offences under Section 307 IPC.

26. The two rival parties have amicably settled the disputes between themselves and buried the hatchet. Not only this, they say that since they are neighbours, they want to live like good neighbours and that was the reason for restoring friendly ties. In such a scenario, should the court give its imprimatur to such a settlement.

The answer depends on various incidental aspects which need serious discourse.

The Legislators has categorically recognized that those offences which are covered by the provisions of section 320 of the Code are concededly those not only do not fall within the category of heinous crime but also which are personal between the parties. Therefore, this provision recognizes whereas there is a compromise between the parties the Court is to act at the said compromise and quash the proceedings.

However, even in respect of such offences not covered within the four corners of Section 320 of the Code, High Court is given power under Section 482 of the Code to accept the compromise between the parties and quash the proceedings. The guiding factor is as to whether the ends of justice would justify such exercise of power, both the ultimate consequences may be acquittal or dismissal of indictment.

This is so recognized in various judgments taken note of above.

27. In the case of Dimpey Gujral (supra), observations of this Court to the effect that offences involved in that case were not offences against the society. It included charge under Section 307 IPC as well. However, apart from stating so, there is no detained discussion on this aspect. Moreover, it is the other factors which prevailed with the Court to accept the settlement and compound he offence, as noted above while discussing this case. On the other hand, in Shambhu Kewat (supra), after referring to some other earlier judgments, this Court opined that commission of offence under Section 307 IPC would be crime against the society at large, and not a crime against an individual only. We find that in most of the cases, this view is taken. Even on first principle, we find that an attempt to take the life of another person has to be treated as a heinous crime and against the society.

28. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/Charge-sheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under section 482 of the Code and refuse to accept the settlement between the parties.

We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties.

29. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. Of course, it would be after looking into the attendant circumstances as narrated in the previous para.

Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction.

However, at this stage, as mentioned above, since the report of the I.O. under Section 173,Cr.P.C. is also placed before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. This aspect, however, would be examined along with another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak.

If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case.

30. We have found that in certain cases, the High Courts have accepted the compromise between the parties when the matter in appeal was pending before the High Court against the conviction recorded by the trial court. Obviously, such cases are those where the accused persons have been found guilty by the trial court, which means the serious charge of Section 307 IPC has been proved beyond reasonable doubt at the level of the trial court. There would not be any question of accepting compromise and acquitting the accused persons simply because the private parties have buried the hatchet.

31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

(I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

(II)When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or (ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

(III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

(IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

(V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

(VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

(VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role.

Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.

32. After having clarified the legal position in the manner aforesaid, we proceed to discuss the case at hand.

33. In the present case, FIR No.121 dated 14.7.2010 was registered under Section 307/324/323/34 IPC. Investigation was completed, whereafter challan was presented in the court against the petitioner herein. Charges have also been framed; the case is at the stage of recording of evidence. At this juncture, parties entered into compromise on the basis of which petition under Section 482 of the Code was filed by the petitioners namely the accused persons for quashing of the criminal proceedings under the said FIR. As per the copy of the settlement which was annexed along with the petition, the compromise took place between the parties on 12.7.2013 when respectable members of the Gram Panchayat held a meeting under the Chairmanship of Sarpanch. It is stated that on the intervention of the said persons/Panchayat, both the parties were agreed for compromise and have also decided to live with peace in future with each other. It was argued that since the parties have decided to keep harmony between the parties so that in future they are able to live with peace and love and they are the residents of the same village, the High Court should have accepted the said compromise and quash the proceedings.

34. We find from the impugned order that the sole reason which weighed with the High Court in refusing to accept the settlement between the parties was the nature of injuries. If we go by that factor alone, normally we would tend to agree with the High Court’s approach. However, as pointed out hereinafter, some other attendant and inseparable circumstances also need to be kept in mind which compel us to take a different view.

35. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. However, a very pertinent statement appears on record viz., “respectable persons have been trying for a compromise up till now, which could not be finalized”.

This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration.

The evidence is yet to be led in the Court. It has not even started.

In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with Police Station LOPOKE, District Amritsar Rural be quashed. We order accordingly.

36. Appeal is allowed. No costs.

………………………………J.
(K.S.Radhakrishnan)

………………………………J.
(A.K.Sikri)

New Delhi,
March 27, 2014

The post Narinder Singh & Ors. Vs. State of Punjab & Anr. appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.517 OF 2014
(Arising out of Special Leave Petition (Crl) No. 6138 OF 2006)

CBI, ACB, MUMBAI . … APPELLANT (S)
VERSUS
NARENDRA LAL JAIN & ORS. … RESPONDENT (S)

RANJAN GOGOI, J.

1. Leave granted.

2. The appellant, Central Bureau of Investigation (CBI) ACB, Mumbai seeks to challenge an order dated 28.10.2005 passed by the High Court of Bombay quashing the criminal proceedings against the respondents Narendra Lal Jain, Jayantilal L. Shah and Ramanlal Lalchand Jain. The aforesaid respondents had moved the High Court under Section 482 Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) challenging the orders passed by the learned Trial Court refusing to discharge them and also questioning the continuance of the criminal proceedings registered against them. Of the three accused, Jayantilal L. Shah, the court is informed, has died during the pendency of the present appeal truncating the scope thereof to an adjudication of the correctness of the decision of the High Court in so far as accused Narendra Lal Jain and Ramanlal Lalchand Jain are concerned.

3. On the basis of two FIRs dated 22.03.1993, R.C. No. 21(A) of 1993 and R.C. No.22 (A) of 1993 were registered against the accused-respondents and several officers of the Bank of Maharashtra. The offences alleged were duly investigated and separate chargesheets in the two cases were filed on the basis whereof Special Case No. 15 of 1995 and Special Case No. 20 of 1995 were registered in the Court of the Special Judge, Mumbai. In the chargesheet filed, offences under Sections 120-B/420 IPC and Sections 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 corresponding to Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short “PC Act”) were alleged against the accused persons. In so far as the present accused-respondents are concerned the gravamen of the charge is that they had conspired with the bank officials and had projected inflated figures of the creditworthiness of the companies represented by them and in this manner had secured more advances/loans from the bank than they were entitled to.

4. While the criminal cases were being investigated the bank had instituted suits for recovery of the amounts claimed to be due from the respondents. The said suits were disposed of in terms of consent decrees dated 23.04.2001. Illustratively, the relevant clause of the agreement on the basis of which the consent decrees were passed reads as follows:

“10. Agreed and declared that dispute between the parties hereto were purely and simply of civil nature and on payment mentioned as aforesaid made by the Respondents the Appellants have no grievance of whatsoever nature including of the CBI Complaint against the Respondents.”

5. Applications for discharge were filed by the accused-respondents which were rejected by the learned Trial Court by order dated 04.09.2011.

The learned Trial Court, thereafter, proceeded to frame charges against the accused. In so far as the present accused-respondents are concerned charges were framed under Sections 120-B/420 of the Indian Penal Code whereas against the bank officials, charges were framed under the different provisions of the Prevention of Corruption Act, 1988 (PC Act). The challenge of the respondents to the order of the learned Trial Court refusing discharge and the continuation of the criminal proceedings as a whole having been upheld by the High Court and the proceedings in question having been set aside and quashed in respect of the respondent, the CBI has filed the present appeal challenging the common order of the High Court dated 28.10.2005.

6. We have heard Mr. P.P. Malhotra, learned Additional Solicitor General appearing on behalf of the appellant and Mr. Sushil Karanjkar, learned counsel appearing on behalf of Respondent Nos. 1 and 4.

7. Shri Malhotra, learned Additional Solicitor General, has taken us through the order passed by the High Court. He has submitted that the High Court had quashed the criminal proceeding registered against the accused- respondents only on the ground that the civil liability of the respondents had been settled by the consent terms recorded in the decree passed in the suits. Shri Malhotra has submitted that when a criminal offence is plainly disclosed, settlement of the civil liability, though arising from the same facts, cannot be a sufficient justification for the premature termination of the criminal case. Shri Malhotra has also submitted that the offence under Section 120-B alleged against the accused-respondents is not compoundable under Section 320 Cr.P.C.; so also the offences under the PC Act. Relying on the decision of a three Judges Bench of this Court in Gian Singh vs. State of Punjab and Another[1], Shri Malhotra has submitted that though it has been held that the power of the High Court under Section 482 Cr.P.C. is distinct and different from the power vested in a criminal Court for compounding of offence under Section 320 of the Cr.P.C., it was made clear that the High Court must have due regard to the nature and gravity of the offences alleged before proceeding to exercise the power under Section 482 Cr.P.C. Specifically drawing the attention of the Court to para 61 of the report in Gian Singh (supra) Shri Malhotra has submitted that “any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act….

cannot provide for any basis for quashing criminal proceeding involving such offences”. Shri Malhotra had contended that having regard to the gravity of the offences alleged, which offences are prima facie made out, in as much as charges have been framed for the trial of the accused- respondents, the High Court was not justified in quashing the criminal proceedings against the accused-respondents.

8. Per contra, the learned counsel for the respondents (accused) have submitted that the High Court, while quashing the criminal proceedings against the respondents (accused), had correctly relied on the judgments of this Court in Central Bureau of Investigation, SPE, SIU(X), New Delhi vs.

Duncans Agro Industries Ltd., Calcutta[2] and B.S.Joshi and Others vs.

State of Haryana and Another[3]. Learned counsel has submitted that though simultaneous criminal and civil action on same set of facts would be maintainable, in Duncans Agro Industries Ltd. (supra) it has been held that the disposal of the civil suit for recovery, on compromise upon receipt of payments by the claimants, would amount to compounding of offence of cheating. No error is, therefore, disclosed in the order of the High Court insofar as the offence under Section 420 IPC is concerned. As for the offence under Section 120-B it is submitted that this Court in B.S. Joshi (supra) has held that the power under Section 482 Cr.P.C. to quash a criminal proceeding is not limited by the provisions of Section 320 Cr.P.C.

and even if an offence is not compoundable under Section 320 Cr.P.C., the same would not act as a bar for the exercise of power under Section 482 Cr.P.C. As the dispute between the parties have been settled on the terms of the compromise decrees, it is submitted that the High Court had correctly applied the principles laid down in B.S. Joshi (supra) to the facts of the present case.

9. Learned counsel has further pointed out that the charges framed against the accused-respondents are under Section 120-B/420 of the Indian Penal Code and the respondents not being public servants, no substantive offence under the PC Act can be alleged against them. The relevance of the views expressed in para 61 of the judgment of this Court in Gian Singh (supra), noted above, to the present case is seriously disputed by the learned counsel in view of the offences alleged against the respondents.

Learned counsel has also submitted that by the very same impugned order of the High Court the criminal proceeding against one Nikhil Merchant was declined to be quashed on the ground that offences under Sections 468 and 471 of the IPC had been alleged against the said accused. Aggrieved by the order of the High Court the accused had moved this Court under Article 136 of the Constitution. In the decision reported in Nikhil Merchant vs.

Central Bureau of Investigation and Another[4] this Court understood the charges/allegations against the aforesaid Nikhil Merchant in the same terms as in the case of the accused-respondents, as already highlighted. Taking into consideration the ratio laid down in B.S. Joshi (supra) and the compromise between the bank and the accused Nikhil Merchant (on the same terms as in the present case) the proceeding against the said accused i.e.

Nikhil Merchant was quashed by the Court taking the view that the power and the Section 482 Cr.P.C. and of this Court under Article 142 of the Constitution cannot be circumscribed by the provisions of Section 320 Cr.P.C. It is further submitted by the learned counsel that the correctness of the view in B.S. Joshi (supra) and Nikhil Merchant (supra) were referred to the three Judges Bench in Gian Singh (supra). As already noted, the opinion expressed in Gian Singh (supra) is that the power of the High Court to quash a criminal proceeding under Section 482 Cr.P.C. is distinct and different from the power vested in a criminal court by Section 320 Cr.P.C. to compound an offence. The conclusion in Gian Singh (supra), therefore, was that the decisions rendered in B.S. Joshi (supra) and Nikhil Merchant (supra) are correct.

10. In the present case, as already seen, the offence with which the accused-respondents had been charged are under Section 120-B/420 of the Indian Penal Code. The civil liability of the respondents to pay the amount to the bank has already been settled amicably. The terms of such settlement have been extracted above. No subsisting grievance of the bank in this regard has been brought to the notice of the Court. While the offence under Section 420 IPC is compoundable the offence under Section 120- B is not. To the latter offence the ratio laid down in B.S. Joshi (supra) and Nikhil Merchant (supra) would apply if the facts of the given case would so justify. The observation in Gian Singh (supra) (para 61) will not be attracted in the present case in view of the offences alleged i.e. under Sections 420/120B IPC.

11. In the present case, having regard to the fact that the liability to make good the monetary loss suffered by the bank had been mutually settled between the parties and the accused had accepted the liability in this regard, the High Court had thought it fit to invoke its power under Section 482 Cr.P.C. We do not see how such exercise of power can be faulted or held to be erroneous. Section 482 of the Code inheres in the High Court the power to make such order as may be considered necessary to, inter alia, prevent the abuse of the process of law or to serve the ends of justice.

While it will be wholly unnecessary to revert or refer to the settled position in law with regard to the contours of the power available under Section 482 Cr.P.C. it must be remembered that continuance of a criminal proceeding which is likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power under Section 482 Cr.P.C.

12. We, therefore, decline to interfere with the impugned order dated 28.10.2005 passed by the High Court and dismiss this appeal. We, however, make it clear that the proceedings in Special Case No. 15/95 and 20/95 stands interfered with by the present order only in respect of accused- respondents Narendra Lal Jain and Ramanlal Lalchand Jain.

.…………………………CJI.
[P. SATHASIVAM]

……..………………………J.
[RANJAN GOGOI]

……….……………………J.
[N.V.RAMANA]

NEW DELHI,
FEBRUARY 28, 2014.

The post CBI,ACB,Mumbai Vs. Narendra Lal Jain & Ors appeared first on B&B Associates LLP.