Introduction: Fact situation and the contentious issues

Shatrughan Chauhan case (21 January 2014)[1] is a highly valued articulation of the Supreme Court that
expounds new judicial policy guidelines to unknot the grey areas of Articles 72 and 161 of the
Constitution of India. This is the most significant judicial determination authored by Chief Justice P.
Sathasivam along with Justices Ranjan Gogoi and Shiva Kriti Singh that undue or unexplained or
inordinate delay by the majestic head of the State in disposing the mercy petition of death row convicts
amounts to torture and, as such, sufficient supervening event for commutation of death sentence to
imprisonment for life. The case examines the camouflage or coloring or reality of the exercise of
executive power by the majestic heads — President or Governor — to grant or refuse to grant mercy to
the convicts of death sentence. The perennial question is whether to consider the mercy petition or not
to consider the mercy petition as a “constitutional privilege” or a “constitutional duty”. This has
remained an unexplored area right from the earliest case till date. Another important question is from
the perspective of “access to justice or distributive justice in healthcare”, which depends on three A’s,
viz., availability, affordability and approachability, when the convict becomes mentally deranged
because of the delay caused in the disposal of mercy petition as well as execution of death sentence.
Does not the system suffer from the ills of delay in as much as the judicial system suffers from the
ailment of delay? Therefore, the case is a milestone that unfolds the conflict between “constitutional
duty” and “constitutional privilege”. The issues pertain to the questions of “standing” under Article 32,
and whether it will be in violation of Article 21 to execute the levied death sentence on the accused
notwithstanding the existence of supervening circumstances emanating from Articles 72 and 161. The
petitions are by the convicts or their family members and public spirited bodies like PUDR for public
cause standing based on the rejection of mercy petition by the President (Article 72) and the Governor
(Article 161). The petitioners prayer 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. PUDR by way of public cause litigation sought 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.

Standing of Petitions both PIL and Non-PIL vis-à-vis “Constitutional Privilege” and “Constitutional Duty”

The petitions, PIL and non-PIL, have sought relief under Article 32 of the Constitution of India 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. In
determining the maintainability of “standing” under Article 32 of the Constitution, the Supreme Court
exerted while relying on Dr. B. R. Ambedkar: “Article 32 is the very soul of the Constitution and the very
heart of it”, said Dr. B.R. Ambedkar on the floor of the Constituent Assembly of India.[2] In determining
whether to grant “standing” in PIL petitions in a public law case like the present one, the higher courts
take into consideration three factors, which the public spirited persons/social action groups seeking
public cause/interest standing must persuade the court that there is no other reasonable and effective
manner in which the issue may be brought before the court, viz., whether the case raises a serious
justiciable issue; whether the public spirited persons/social action groups bringing the case have a real
stake in the proceedings; and whether the case is a reasonable and effective access-means to bring the
case to the court to seeking ends of justice. In this case these three factors a proprio vigore applied
purposively and flexibly, favor granting public cause/interest standing to the petitions. The Supreme
Court unequivocally, on the maintainability of “standing” observed:

At the outset, the petitioners have 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”.

It seems that the violation of fundamental right, in the given case, has arisen out of an executive
action/inaction, and, therefore, Article 32 can be utilized to enforce the fundamental rights of the
convicts. The stand of the petitioners that exercise of the constitutional power vested in the executive
specified under Article 72/161 has violated the fundamental rights of the petitioners has been
vindicated.[3] It discerns that the Apex Court has ever ventured to convey that the constitutional power
under Article 72/161 has not to be exercised as a mere “constitutional privilege” by the majestic head of
the State, but as a directive of “constitutional duty/obligation” of the majestic head of the State. The
power to pardon has been reposed by the people through the Constitution in the executive head of the
State as “a constitutional responsibility of great significance, to be exercised when occasion arises in
accordance with the discretion contemplated by the context”[4], viz., the power to pardon rests on the
advice tendered by the Executive to the President/Governor, who subject to the provisions of Article
74(1)/163 of the Constitution, must act in accordance with such advice. Delay in the rendition of advice
by the Executive to the majestic head of the State culminates in delay in disposal of mercy petition(s)
under Article 72/161 and this executive delay is inasmuch as an ill as the ill of delay in disposal of cases
or pendency of the cases or clogging of the cases in the courts. The philosophy underlying the pardon
power is that it should be exercised as an act of responsibility with grace and humanity and not as a
privilege nor as “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”. [5] The Supreme Court in
an ocean within a tear phrase has observed that “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 … to be exercised on the aid and advice of the Council of
Ministers”.[6] The limited judicial review is applicable on the exercise of this Constitutional
duty/obligation/responsibility. The Constitutional duty/obligation/responsibility exercised is not open to
judicial review if the convicts commit murder after “a savage planning which bears a professional stamp,
that the survival of an orderly society demands the extinction of the life of persons … who are a menace
to social order and security, and that they are professional murders and deserve no sympathy even in
terms of the evolving standards of decency of a matured society”.[7] Judicial review on the exercise of
Constitutional duty/obligation/responsibility is available only on limited judicially evolved grounds
excluding hearing in person the petitioner for mercy before taking decision:
a. If the executive head had been found to have exercised the power himself without being advised
by the government;

b. If the executive head transgressed his jurisdiction in exercising the said power;

c. If the executive head had passed the order without applying his mind;

d. The order of the executive head was mala fide;

e. The order of the executive head was passed on some extraneous considerations;

f. The executive head should not exercise the power malafidely;

g. There should not be any political considerations behind the exercise of the pardoning power. [8]

Supervening Circumstances
A supervening cause takes place or occurs as something additional or extraneous or unforeseen and
essentially is an event that operates independently of anything else and becomes the cause for legal
remedy. The origin of supervening event or cause or circumstance is in Latin expression supervenire and
is based on intervening cause that comes between the initial event in a sequence and the end result,
thereby altering the natural course of events that might have connected a wrongful act to an injury. If
the supervening cause/event/circumstance is strong enough it relieves the convict-victim (death row
convicts) from capital sentence. Supervening cause/ event/circumstance must be strong enough to
attract the judicial attention to commuting death sentence into life imprisonment: novus actus
interveniens; nova causa interveniens. [9] The under mentioned supervening circumstances are
imperative for commutation of death sentence to imprisonment for life.

(i) Delay

The genesis of occurrence of inordinate delay as one of the supervening circumstances is the procedural
infirmities/lapse/absenteeism under Article 72/161 for processing the mercy petition. Can there be a
specific time limit for examination of mercy petitions? Article 72/161 do not contemplate any time limit
within which the mercy petition is to be disposed of by the President of India or the Governor of the
State. Normally the procedure comprehended is like this: Once the Supreme Court finally decides the
final appeal of the convicts of death sentence, the death row convicts invariably approach the Governor
under Article 161 of the Constitution with a mercy petitions. During the pendency of the mercy petition
the execution of the death sentence is stayed. Once the mercy petition is rejected by the Governor, the
convict prefers mercy petition to the President under Article 72 of the Constitution. As per the
procedure, the mercy petition received in the President’s office is forwarded to the Ministry of Home
Affairs. Usually, the mercy petition consists of one or two pages giving grounds for mercy. In order to
examine the standing of the mercy petition and to arrive at a conclusion, the documents like copy of the
judgments of the trial Court, High Court the Supreme Court, 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 record of the case, nominal role of the convict, and health status of
prisoner are gathered from the State Government and Prison authorities. This process consumes a lot of
time and involves protracted correspondence with the State and prison authorities. The decision of the
President under Article 72 is communicated to the State Government/Union Territory concerned and to
the prisoner through the State Government/Union Territory. This process involves undue, unreasonable
and prolonged delay in disposal of mercy petition and the execution of death penalty in the face of such
an inordinate delay that infringes the fundamental right to life under Article 21 of the Constitution. This,
thus, invites the exercise of jurisdiction of the Supreme Court under Article 32. In the backdrop of this,
two questions relating to thirteen death row convicts have been imperative before the Supreme Court
for consideration, viz., (i) whether the delay in execution itself will be a ground for commutation of
sentence, and (ii) whether two year’s delay in execution will automatically entitle the condemned
prisoner for commutation of sentence. Both the questions are interlinked because both spell out the
“brooding horror of haunting the prisoner in the condemned cell for years”.[10] It is pertinent to note
that till 1980, as observed by the Court, the mercy petitions were decided in minimum of 15 days and in
maximum of 10-11 months; from 1980-1988, the time taken in disposal of mercy petitions was in an
average span of 4 years, which is the beginning of judicial conviviality for “developing the jurisprudence
of commuting the death sentence based on undue delay”.[11] As to how to overcome undue delay, the
Court in Sher Singh’ case[12] a multo fortiorari has impressed upon the Governments both of India and
all the States for speedy as well as expeditious disposal of petitions under Articles 72 and 161or under
Sections 432 and 433 of Criminal Procedure Code and issued under mentioned directions:

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.
(Emphasis supplied)

Consequently, the Court’s directions carried a meaningful impact inasmuch as that from 1989 to 1997
the average time taken for deciding the mercy petitions was 5 months. But, unfortunately, from 1998
onwards the history of deciding the mercy petitions under Article 72/161 has again been the prey of
‘slow snail pace’ delay of maximum of 12 years, and the ‘poor’ death row convict-victims have been
tortuously oscillating between the supervening swings of delay in disposal of mercy petition and delay in
execution of death sentence. The Apex Court, therefore, has handed down a vital aspect to overcome
delay, because delay causes a trauma not only to the life of the death row convicts under Article 21 of
the Constitution, but also of the right to life of the victims or the deceased’s family as societal
considerations since these elements form part of the sentencing process. The Apex Court, therefore,
taking a cogent view, has expressed 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 death sentence. [13] While commuting the death sentence
into imprisonment for life of death row convicts, the Court unequivocally opined: “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
mulcted offences charged 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.” [14]

It discerns that while commuting the death sentence on the basis of supervening circumstance of delay,
the Court did not incline to make a distinction between the nature of IPC and non-IPC offences, because
such a distinction shall be a mere legal fiction and an exercise in artificiality. Though the Court did not
incline to prescribe any time limit in the disposal of mercy petitions under Article 72/161, but the
problem of delay shall continue to remain a ‘riddle wrapped in mystery inside an enigma’. Therefore, it
is submitted that the judicial policy in this perspective ought to have been in the streams of Sher Singh
case[15] , viz., in the average of 3 to 12 months.

(ii) Insanity/Mental Illness/Schizophrenia

Insanity/mental illness/schizophrenia is another significant supervening circumstance that is based on

the ground of the unconscionable long delays in deciding mercy petition. Unconscionable long delay in
deciding mercy petition is the result of indecisiveness on extraneous as well as political considerations,
which consequentially causes the onset of chronic psychotic illness. In other words, insanity/mental
illness/schizophrenia is the effect of unexplained/undue/inordinate delay as cause. Therefore, this
supervening event is an in depth examination of causal relationship of effect and cause. And as such,
the execution of death sentence will be inhuman and against the well established canons of human
rights. The Court has taken a humane approach in deciding the cases of two convict prisoners who have
been traumatically oscillating between the indecisive approaches of the majestic head of the State(s)
and heads of noose execution. The said supervening event undoubtedly violates the fundamental right
to life under Article 21 of the Constitution. And as such, while re-visiting the national and international
legal treatises, the Court has unequivocally observed that such legal documents prohibit the execution
of death sentence on an insane/mentally deranged person(s). [16] The Court, therefore, urged 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. … (U)ndoubtedly, Article 21 protects him and … 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, 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

Solitary confinement of the convict prisoners is another supervening circumstance that invites the
attention of the Court commutation of death sentence into life imprisonment. The contentious ground
is whether the death row convicts could be kept in solitary confinement from the date of imposition of
death sentence by the sessions Court. Whether such solitary confinement is a form of torture and
contrary to the provisions of IPC or Criminal Procedure Code, Prisons Act and Articles 14, 19 and 21 of
the Constitution? Whether death row convicts are to be kept in statutory segregation and not per se in
solitary confinement? The Apex Court examined the niceties of these contentious questions in the
backdrop of well-settled law in Sunil Batra v. Delhi Administration[17]. The Court observed that death
row convicts waiting for hangmen’s lethal move cannot be kept under solitary confinement. Solitary
confinement is a separate substantive punishment of maddening severity prescribed by Section 73 of
the socially less sensitive Indian Penal Code of 1860. Death row convicts can be kept under ‘statutory
confinement’ under the authority of Section 30(2) of the Prisons Act read with Section 366(2) Criminal
Procedure Code. It will be a stultification of judicial power if under the guise of using Section 30(2) of the
Prisons Act, the Superintendent of Prisons inflicts what is substantially solitary confinement which is a
species of punishment exclusively within the jurisdiction of the criminal court. This seems to be an act of
invisible State, viz., what is within the jurisdiction of the criminal court is purloined by the
Superintendent of prisons. The Court seems to have, covertly or overtly, recognized it in these words
in Sunil Batra’s case: “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 logomachies[18], 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 Sections 73 and 74
Indian Penal Code, 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.” Besides, the Court seems to have looked into it from humane perspective that is the
natural way to perceive into the sting of solitary confinement. The Court emphasized: “Solitary
confinement has the severest sting and is awaradable 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! … Section 30(2) of the Prisons Act provides no alibi for any form of solitary or separated cellular
tenancy for death sentence save to the extent (permissible). (Emphasis supplied)

In the background of the Court’s above mentioned observations in Sunil Batra’s case , the Court opined
that once the mercy petition is rejected by the majestic head of the State under Article 72/161, the
person is under sentence of death. During that interregnum period, the death row convict attracts the
custodial segregation specified in Section 30(2) of the Prisons Act. To be ‘under sentence of death’
means ‘to be under a finally executable death sentence’. [19] The court, thus, concluded: “Keeping a
prisoner in solitary confinement is contrary to the ruling in Sunil Batra’s case 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 opportunity to urge to the jail authorities to comprehend and implement the
actual intent of the verdict in Sunil Batra.” This is the judicial reprimand to those who purloin the
jurisdiction not vested in them by law.

(iv) Judgments Declared Per Incuriam

The expression per incuriam connotes a judicial decision wrongly decided, because the judge(s) were ill-
informed about the applicable law, viz., stare decisis. [20] Though per incuriam was pleaded as one of
the supervening circumstance for commutation of death sentence, but the Apex Court opined that there
was no need to give importance to the arguments relating to per incuriam. The Court did not incline to
agree with the memorials of the contenders that the judgment in Machhi Singh v. State of
Punjab[21]declared per incuriam. The chief complaint in the memorials has been that the guidelines
issued in Machhi Singh case are contrary to the law laid down in Bachan Singh v. State of Punjab
case[22], and, therefore, the verdict pronounced in Machhi Singh case is held to be per incuriam.[23]The
Court after carefully scrutinizing the decision in Machhi Singh case came to the conclusion that “ Bachan
Singh case laid down the principle of ‘rarest of the rare cases’, and Machhi Singh case for practical
application crystallized the principle into five definite categories of cases of murder, viz., manner of
commission of murder; motive for commission of murder; anti-social or socially abhorrent nature of the
crime; magnitude of crime and personality of victim 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”.[24]
It, thus, discerns from the backdrop of the above, the Court has nowhere discarded the Machhi
Singh ruling rather it clarifies the Bachan Singh law. Therefore, the Court did not incline to give any
importance to the plea of per incuriam, which may seem to be a plea in alibi.

(v) Procedural Lapses

The ground of procedural lapses is one of the important supervening circumstances for the plea of
commuting death sentence. The Union Government has laid down certain guidelines for deciding mercy
petitions under Article 72/161. Non-compliance of the guidelines affects the very spirit and soul of
Article 21 which is the paramount principle on which rights of the death row convicts are based along
with the rights of the victims of crimes or the deceased’s family as also social considerations since these
elements form part of the sentencing process as well. The procedural guidelines are as follows:

Personality of the accused (such as sex, age 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 cases;

Long delays in investigation and trial etc.

These guidelines mutatis mutandi set out that the power under Article 72/161 is an extraordinary power
to be exercised as a ‘constitutional duty’ and not lightly or as a matter of course as a mere
‘constitutional privilege’.

The Court after going through various details at various stages urged that undue and unexplained delay
in execution is one of the supervening circumstances. Surprisingly, there is no mention of delay by the
majestic heads under Articles 72 and 161. Besides, the unexplained delay has caused mental
derangement. In the backdrop of this, the Court commuted the death sentence of death row convicts
into life imprisonment till last breadth. The Court in its conscientious ‘brooding omnipresence’ both
in Shatrughan Chauhan and V. Sriharan @ Murugan cases[25] have concluded that “the relief sought for
under these kind of petitions is not per se review of the order passed under Article 72/161 of the
Constitution on merits but on the ground of violation of fundamental rights guaranteed under the
Constitution to all the citizens including the death row convicts. The clemency procedure under Article
72/161 provides a ray of hope to the condemned prisoners and his family members for commutation of
death sentence into life imprisonment and, therefore, the executive should step up and exercise its
time-honored tradition of clemency power guaranteed in the Constitution one-way or the other within a
reasonable time. … We are confident that the mercy petitions filed 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. The fact that no time limit is prescribed to the President/Governor for disposal of the mercy
petition should compel the government to work in a more systematized manner to repose the
confidence of the people in the institution of democracy. Besides, it is definitely not a pleasure for this
Court to interfere in the constitutional power vested under Article 72/161 of the Constitution and,
therefore, we implore upon the government to render its advice to the President within a reasonable
time so that the President is in a position to arrive at a decision at the earliest”. The Supreme Court has
framed the following guidelines for safeguarding the interest of the death row convicts and also for
minimizing the delay in the disposal of the mercy petition(s) by the majestic head of the State:

1. Solitary confinement: Solitary confinement or single cell confinement prior to rejection of the
mercy petition by the President is unconstitutional. Prison Manuals provide necessary rules governing
the confinement of death convicts and the rules should not be interpreted to run counter and violate
Article 21 of the Constitution.

2. Legal Aid: Legal aid is a fundamental right under Article 21 and inhere rights in a convict till his last
breath. After the 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. The
Superintendent of jails will intimate the rejection of mercy petitions to the nearest Legal Aid Centre
apart from intimating the convicts. It is submitted that the Legal Aid Clinics of Law Schools in the
country should also take up this pious task and involve the law students in rendering the legal aid to
such convicts.

3. Procedure in placing the mercy petition before the President: The Government of India’s
guidelines, as discussed above, for disposal of mercy petitions filed by death convicts after disposal of
their appeals by the Supreme Court must be adhered to strictly. The concerned department should be
disciplinarian in calling for the records, as spelled out above, in one go and not in piece-meal in order to
minimize the delay in the disposal of mercy petition by the majestic head. After getting all the detailed
records, the Ministry of Home Affairs should send the recommendations or their views to the majestic
head of the State 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/obligation/duty of the
Ministry of Home Affairs to send periodical reminders and to provide required materials for early
decision.

4. Commutation of rejection of 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. It is submitted that the Legal Aid Clinics of the Law Schools in the country can
involve their law students as paralegal servers in this perspective so that dormant clinics can be
activated.

5. Communication of Rejection of the Mercy Petition by the President: Since the death convict has a
constitutional right under Article 72 of the Constitution 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. As
already stated above, the law students engaged in the legal aid clinics in their law schools should be
activated as paralegals.

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. It discerns that this directive enables the death victim to seek judicial
review of the rejection of the mercy petition. It is submitted that besides legal aid services centers
operative under the legal services authorities legislation, the law students engaged in the legal aid clinics
of the law schools can play an active role in this perspective and can be activated from their dormant
stage and that shall be an experiential learning in clinical legal education modules.

7. Minimum 14 days notice for execution: Since the prison manuals do not contain uniform
communication procedure, it shall be 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 reasons: (a) it shall allow the prisoner to prepare himself mentally for execution, to
make his peace with God, prepare his will and settle other earthly affairs; (b) it shall allow the prisoner
to have a last and final meeting with his family members; (c) it shall allow 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. This time schedule is imperative because without sufficient notice of the
scheduled date of execution, the prisoners’ right to avail judicial remedies will be thwarted and they will
be prevented from having a last and final meeting with their families. Therefore, the Superintendent of
Jail/Prison have an obligation to see that the family members of the death convicts receive the message
of communication of rejection of mercy petition in time.

8. Mental Health Evaluation: Death row prisoners lose their mental balance due to 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 Prison Superintendent the discretion
to stop an execution on account of the convict’s physical and 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.

10. Furnishing documents to the convict: The death row prisoners must be provided with the copies of
the court papers, judgments, etc. within a week by the prison authorities for making appeals, mercy
petitions and accessing post-mercy judicial remedies which are essential under Article 21 of the
Constitution. Extreme poor conditions of such victims should not be predicament or stumbling block of
their rights under Article 21.

11. Final meeting between Prisoner and his Family: In the absence of any uniform procedure prescribed
in the prison manuals of different States, it is necessary for prison authorities to facilitate a final meeting
between the condemned prisoner and his family prior to execution that is intrinsic to humanity and
justice.

12. Post Mortem reports: It must be obligatory to conduct compulsory post mortem on death convicts
after the execution.

It discerns that delay at bureaucratic-Ministerial level culminates in delay at the majestic head(s) level.
Be that as it may, undue as well as unexplained delay cannot be justified under any canons of law.

However, an interesting question of law has surfaced after Sriharan @ Murugan’s case: Could a State
Government order the release of death row convicts, whose death sentence has been commuted into
life imprisonment, viz., life in prison, under Sections 435 of Criminal Procedure Code, 1973? Or, Can the
power of remission be exercised by the State government after the commutation of death sentence into
life imprisonment, viz., life in prison? Should the State government prescribe time limit, say three days
or so, for the Central Government to respond to the recommendations of the State government, failing
which the State government shall remit the convicts of life imprisonment? However, it seems that the
State action is in haste which again seems to be a ‘politically colored’ action; there does not seem to be
a ‘legally colored’ action in the fit of haste. This needs a thorough judicial probe in a sub judice matter.

Conclusion

The Supreme Court has evolved mercy jurisprudence in the global legal arena. “Mercy jurisprudence is a
part of evolving standard of decency, which is the hallmark of the society”, is the majestic law ever
expounded by the Apex Court. It has also a multo fortiorari observed that exercising of power by the
majestic heads of the State under Article 72/161 is a constitutional duty/obligation/responsibility and
not a mere prerogative/privilege. The Court unequivocally has expounded the law: “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 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.” (Emphasis supplied).

We conclude by recalling a line from a poem of poet John Donne:

“Death be not proud, though some have called thee …

Thou art slave to Fate, Chance, kings, and desperate men, …

One short sleep past, wee wake eternally,

And death shall be no more, death thou shalt diw!”

[1] See also V. Sriharan @ Murugan v. Union of India, decided by the Supreme Court Bench of Justices P.
Sathasivam, CJI and Ranjan Gogoi on 18 February 2014.

[2] CAD and reiterated in Minerva Mills Ltd. V. Union of India, (1980) 2 SCC 625.

[3] See R.D. Shetty v. International Airport Authority of India, (1979) 3 scc 489; t.v. Vatheeswaran v.
State of Tamil Nadu, (1983) 2 SCC 68; Sher Singh v. State of Punjab, (1983) 2 SCC 344; Triveniben v. State
of Gujarat, (1988) 4 SCC 574.

[4] See Kehar Singh v. Union of India, (1989) 1 SCC 204.

[5] See Justice Holmes in the case of Biddle v. Perovich 71 L. Ed. 1161 at 1163; see also Epuru Sudhakar
v. Government of A. P. , (2006) 8 SCC 161.

[6] Para 17 of the Judgment.

[7] Kuljeet Singh alias Ranga and Billa v. Lt. Governor, (1982) 1 SCC 417.

[8] See Narayan Dutt v. State of Punjab, (2011) 4 SCC 353; Maru Ram v. Union of India, (1981) 1 SCC 107;
Epuru Sudhakar v. Government of A. P., (2006) 8 SCC 161.

[9] See also V. Sriharan @ Murugan v. Union of India, decided by the Supreme Court Bench of Justices P.
Sathasivam (CJI) and Ranjan Gogoi on 18 February 2014.

[10] See Justice Krishna Iyer in Ediga Anamma v. State of A. P. , 1974 (4) SCC 443; see also Justice
Chinnappa Reddy in T. V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 344: 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.

[11] See Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68; Triveniben v. State of Gujarat, (1988) 4
SCC 574.

[12] Sher Singh v. State of Punjab, (1983) 2 SCC 344.

[13] Vide Para 54.

[14] See supra 8.

[15] Supra 11.

[16] Resolution 2000/65 dated 27.04.2000 of the U. N. Commission on Human Rights: The Question of
Death Penalty; The Report of the Special Rapporteur on Extra-Judicial Summary or Arbitrary Execution,
1996; U. N. Commission on Human Rights: Restrictions on the use of death penalty; U. N. General
Assembly Resolution adopted on 18.12.2007 in its Sixty-second session: Moratorium on the use of the
death penalty; William Blackstone, Commentary on the Laws of England; Jail Manuals of the respective
Indian States.

[17] (1978) 4 SCC 494.

[18] A dispute of words like the present one on solitary confinement and death row convicts.

[19] Para 82 of the judgment.

[20] See Rupert Cross & J. W. Harris, Precedent in English Law, 4th ed. 1991; Louis-Philippe Pigeon,
Drafting and Interpreting Legislation, 1988.

[21] (1983) 3 SCC 470; see also Ravji alias Ramchandra v. State of Rajasthan, (1996) 2 SCC 175; Sushil
Murmu v. State of Jharkhand, (2004) 2 SCC 338; Dhananjoy Chatterjee v. State of W. B., (1994) 2 SCC
220; State of U. P. v. Dharmendra Singh, (1999) 8 SCC 325; Surja Ram v. State of Rajasthan, (1996) 6 SCC
271.

[22] (1980) 2 SCC 684.

[23] See also three decisions of the Apex Court, viz., Swami Shraddananda (2) v. State of Karnataka,
(2008) 13 SCC 767; Sangeet v. State of Haryana, (2013) 2 SCC 452; Gurvail Singh v. State of Punjab,
(2913) 2 SCC 713, the verdict pronounced by Machhi Singh case is held per incuriam.

[24] Para 87 of the Judgment.

[25] Supra

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