UNION OF INDIA (Writ Petition (Criminal) No. 55 of 2013) JANUARY 21 & Ors. v. UNION OF INDIA be any delay at the instance of the officers & Ors.

4.1.11. The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The main aim 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. All these aspects were emphatically considered by this Court while pronouncing the final verdict_ against the petitioners thereby upholding the sentence of death imposed by the High Court. E Nevertheless, the same accused (petitioners) were before this court under Article 32 petition seeking commutation of sentence on the basis of undue delay caused in execution of their levied death sentence. There is distinction under both circumstances. Under the former F scenario, the petitioners herein were the persons who were accused of the offence wherein the sentence of 'death was imposed but in later scenario, the petitioners herein approached this Court as a victim of violation of guaranteed fundamental rights under the Constitution G seeking commutation of sentence. This distinction must be considered and appreciated. [Paras 52, 53] [671-E-F; 672-A-E] Ha/sbury's Laws of-England; (4th Edition: Vol. II: para 482) - referred to. H 624 SUPREME COURT REPORTS [2014] 1 S.C.R. A Rationality of Distinguishing between Indian Penal Code, 1860 And Terrorist and Disruptive Activities (Prevention) Act Offences for Sentencing Purpose 8

4.2.1. 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 C or some horrible consequences for society caused by the offence are not relevant after the Constitution Bench ruled in ***Bachan Singh case that the sentence of death can only be imposed in the rarest of rare cases. Meaning, of course, all death sentences imposed are impliedly the most heinous and barbaric and rarest of its kind. The D legal effect of the extraordinary depravity of the offence exhausts itself when court sentences the person to death for that offence. Law does not prescribe an additional period of imprisonment in addition to the sentence of death for any such exceptional depravity involved in the E offence. [Para 57] [673-G-H; 674-A-C] Devender Pal Singh Bhullar vs. State (NCT) of Delhi (2013) 6 sec 195 per incuriam F ***Bachan Singh vs. State of Punjab (1980) 2 SCC 684 - referred to.

4.2.2. It is open to the legislature in its wisdom to decide by enacting an appropriate law that a certain fixed period of imprisonment in addition to the sentence of G death can be imposed in some well defined cases but the result cannot be accomplished by a judicial decision alone. The unconstitutionality of this additional incarceration is itself inexorable and must not be treated as dispensable through a judicial decision. [Para 58] [674- H D-E] SHATRUGHAN CHAUHAN v. UNION OF INDIA 625 Mahendra Nath Das vs. Union of India and Ors. (2013) A 6 sec 253 - relied on. 8

4.2.3. Section 303 IPC provides that "no person shall be deprived of his life or personal liberty except according to the procedure established by law". Since Section 303 IPC excludes judicial discretion, the Constitution Bench in ****Mithu case has concluded that such a law must necessarily be stigmatized as arbitrary and oppressive. rn is further clear that no one should be deprived of equality contained in Article 14 as also the right conferred C by Article 21 of the Constitution regarding his life or personal liberty except according to the procedure established by law. Unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases including the offences D under TADA. The only aspect the courts have to satisfy is that the delay must be unreasonable and unexplained or inordinate at the hands of the executive. The argument that a distinction can be drawn between IPC and non-IPC offences since the nature of the offence is a relevant E factor is liable to be rejected at the outset. [Paras 65, 69, 70] [678-D-E; 681-F-H; 682-A-B] ****Mithu vs. State of Punjab (1983) 2 SCC 277: 1983 (2) SCR 690; Sunil Batra vs. Delhi Administration (1978) 4 F sec 494: 1979 (1) SCR 392 - relied on.

4.3. (ii) Insanity/Mental Illness/Schizophrenia India is a member of the United Nations and has ratified the International Covenant on Civil and Political G Rights (ICCPR). A large number of United Nations international documents prohibit the execution of death sentence on an insane person. Clause 3(e) of the Resolution 2000165 dated 27 .04.2000 of the U.N. Commiuion on Human Rights titled "The Question of H 626 SUPREME COURT REPORTS [2014] 1 S.C.R. 0 A Death Penalty" urges "all States that still maintain the death pena/ty ... not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person". Similarly, Clause 89 of the Report of the Special Rapporteur on Extra-Judicial B Summary or Arbitrary Executions published on 24.12.1996 by the UN Commission on Human Rights under the caption "Restrictions on the use of death penalty" states that "the imposition of capital punishment on mentally retarded or insane persons, pregnant women c and recent mothers is prohibited". Further, Clause 116 thereof under the caption "Capital punishment" urges that "Governments that enforce such legislation with respect to minors and the mentally ill are particularly called upon to bring their domestic criminal laws into conformity with international legal standards". India too has similar line of law and rules in the respective State Jail Manuals. Paras 386 and 387 of the U.P. Jail Manual applicable to the State of Uttarakhand. Similar provisions are available in Prison Manuals of other States in India. These E materials, particularly, the directions of the United Nations International Conventions, of which India is a party, clearly, show that insanity/mental illness/schizophrenia is a crucial supervening circumstance, which should be considered by this Court in deciding whether in the facts and circumstances of the case death sentence could be F commuted to life imprisonment. In addition, after it is established that the death convict is insane and it is duly certified by the competent doctor, undoubtedly, Article 21 protects him and such person cannot be executed without further clarification from the competent authority G about his mental problems. It is also highlighted by relying on commentaries from various countries that civilized countries have not executed death penalty on an insane person. In view of the well established laws both at national as well as international sphere, insanity is one H SHATRUGHAN CHAUHAN v. UNION OF INDIA 627 of the supervening circumstances that warrants for A commutation of death sentence to life imprisonment. [Paras 73, 74, 77, 78, 79] [682-G-H; 683-A; 685-A-C; 686- D; 687-A-F]

4.4. (iii) Solitary Confinement B The grievance of some of the petitioners was that they were confined in solitary confinement from the date of imposition of death sentence by the Sessions Court which was contrary to the provisions of the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, C Prisons Act and Articles 14, 19 and 21 of the Constitution and it is certainly a form of torture. However, the· respective States have outrightly denied having kept any of the petitioners in solitary confinement in violation of existing laws. It was submitted that they were kept D separately from the other prisoners for safety purposes. In other words, they were kept in statutory segregation and not per se in solitary confinement. The solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for E prisoners 'under sentence of death'. The crucial holding under Section 30(2) is that a person is not 'under sentence of death', even if the Sessions Court has sentenced him to death subject to confirmation by the High Court. He is not 'under sentence of death' even if F the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, it was held that Section 30 does not cover him so long G as his petition for mercy to the Governor and/or to the President permitted by the Constitution, has not been disposed of. Of course, once rejected by the Governor and the President, and on further application, there is no stay of execution by the authorities, the person is under H 628 SUPREME COURT REPORTS [2014] 1 S.C.R. A sentence of death. During that interregnum, he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be 'under sentence of death' means 'to be under a finally executable death sentence'. [Paras 80, 82] [687-G-H; 688-A-B; 692-E-H; 693-A] B Sunil Batra vs. Delhi Administration and Ors. etc. (1978) 4 SCC 494: 1979 (1) SCR 392 - relied on. c

4.5. (iv) Judgments Declared Per lncuriam The argument that the trial court or the High Court relied onladverted to certain earlier decision which were elither doubted or held per incuriam is not relevant. [Paras 85] [693-D-E] D Machhi Singh vs. State of Punjab (1983) 3 SCC 470: 1983 (3) SCR 413; Ravji alias Ramchandra vs. State of Rajasthan (1996) 2 SCC 175: 1995 (6) Suppl. SCR 195; Sushi( Murmu vs. State of Jharkhand (2004) 2 SCC 338: 2003 (6) Suppl. SCR 702; Dhananjoy Chatterjee vs. State E of WB. (1994) 2 SCC 220: 1994 (1) SCR 37; State of U.P. vs. Dharmendra Singh (1999) 8 SCC 325: 1999 (3 ) Suppl. SCR 52; Surja Ram vs. State of Rajasthan (1996) 6 SCC 271: 1996 ( 6 ) Suppl. SCR 783; Swamy Shraddananda (2) vs. State of Karnataka (2008) 13 SCC 767: 2008 (11) SCR 93; Sangeet and Anr. vs. State of Haryana (2013) 2 SCC 452: 2012 (13) SCR 85; Gurvail Singh vs. State of Punjab (2013) 2 SCC 713: 2013 (1) SCR 783 - referred to. F G 4.6. (v) Procedural Lapses

4.6.1. Ministry of Home Affairs, Government of India has detailed procedure regarding handling of petitions for mercy in death sentence cases. As per the said procedure, Rule I enables a convict under sentence of H SHATRUGHAN CHAUHAN v. UNION OF INDIA 629 death to submit a petition for mercy within seven days A after and exclusive of the day on which Superintendent of Jail informs him of the dismissal by the Supreme Court of his appeal or of his application for special leave to appeal to the Supreme Court. Rule II prescribes procedure for submission of petitions. As per B this Rule, such peUtions shall be addressed to, in the case of States, to the Governor of the State at the first instance and thereafter to the President of India and in the case of Union Territories directly to the President of India. As soon as mercy petition is received, the c execution of sentence shall in all cases be postponed pending receipt of orders on the same. Rule Ill states that the petition shall in the first instance, in the case of States, be sent to the State concerned for consideration and orders of the Governor. If after consideration it is rejected, 0 it shall be forwarded to the Secretary to the Government of India, Ministry of Home Affairs. If it is decided to commute the sentence of death, the petition addressed to the President of India shall be withheld and intimation to that effect shall be sent to the petitioner. Rule V states that in all cases in which a petition for mercy from a convict under sentence of death is to be forwarded to the Secretary to the Government of India, Ministry of Home Affairs, the Lt. Governor/Chief Commissioner/ Administrator or the Government of the State concerned, as the case may be, shall forward such petition, as expeditiously as possible, along with the records of the 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 G Government of India, Ministry of Home Affairs, immediately in the manner prescribed. In the case of Assam and Andaman and Nicobar Islands, all orders will be communicated by telegraph and the receipt thereof shall be acknowledged by telegraph. In the case of other H - F- E. 630 SUPREME COURT REPORTS [2014) 1 S.C.R. A 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 s and by telegraph in all other cases and receipt thereof shall be acknowledged by express letter or telegraph, as the case may be. Rule Vlll(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 c petition, he is free to make fresh application to the President for reconsideration of the earlier order. [Para 91] (695-D-H; 696-A-F]

4.6.2. Specific instructions relating to the duties of Superintendents of Jail in connection with the petitions D 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 E 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 F 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 G 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 Ill says that if the convict submits a petition within the period of seven days prescribed by H Rule II, it should be addressed, in the case of States, to SHATRUGHAN CHAUHAN v. UNION OF INDIA 631 the Governor of the State at the first instance and, A 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/ B 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 c 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. The 0 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". Apart from the above Rules regarding presentation of E mercy petitions and disposal thereof, necessary instructions have been issued for preparation of note to ~e approved by the Home Minister and for passing appropriate orders by the President of India. [paras 92, 93, 94] [696-G-H; 697-A-H] F

4.6.3. 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 G 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. The elaborate procedure clearly shows that even H 632 SUPREME COURT REPORTS [2014] 1 S.C.R. B A 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 C 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. [Paras 95, 96] [698-A-F] 0

5. In the light of principles and facts of each case, the death sentence of all the petitioners is commuted into imprisonment for life. [para 265] [7 46-G-H] E Guidelines:

6. 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 F 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. In view of the disparities in implementing the already existing laws, the following guidelines for safeguarding the interest of the death row convicts are framed: G H

1. Solitary Confinement: This Court, in Sunil Batra held that solitary or single cell SHATRUGHAN CHAUHAN v. UNION OF INDIA 633

2. confinement prior to rejection of the mercy A 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 B above ruling and violate Article 21 of the Constitution. Legal Aid: There is no provision in any of the Prison Manuals for providing legal aid, for C 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 D 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 E 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 F 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 G 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 H 634 SUPREME COURT REPORTS [2014] 1 S.C.R. A B c D E F

4. G H 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 frortl 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. 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 SHATRUGHAN CHAUHAN v. UNION OF INDIA 635

5. writing or through some other mode of A communication available. Communication of Rejection of the Mercy Petition by the President: Many, but not all, prison manuals have provision for informing 8 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 C 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 D 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 communicated to the convict and his family in E writing. forthwith

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. F

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 G 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 H 636 SUPREME COURT REPORTS [2014] 1 S.C.R. A B c D E F G H rejection of the mercy petition and the scheduled date of execution for the following reasons:- (a) (b) It allows the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs. 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 SHATRUGHAN CHAUHAN v. UNION OF INDIA 637 manuals give the Prison Superintendent the A 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 B satisfy himself on the basis of medical reports by Government doctors and psychiatrists that the prisoner is in a fit physical and mental condition Superintendent is of the opinion that the c 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. executed. If D

11. 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 E 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 F that copies of relevant documents should be furnished to the prisoner within a week by the prison a.uthorities to assist in making mercy petition and petitioning the courts. 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 H G 638 SUPREME COURT REPORTS [2014] 1 S.C.R. 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. [Para 259] [738-C-H, A-H; 740-A-H· 741-A-H· 742-A-H· 743-A-D] ' ' ' A B c D

7. 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 E medical persons which assured that hanging is the least painful way of ending the life. 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 F 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. Making post mortem obligatory will ensure G just, fair and reasonable procedure of execution of death sentence. [Para 259 & 260] [7 45-B-E]