Moot court Notes and cases.

Is there a violation of accused’s right to life under article 21 due to unreasonable delay?

Did the behaviour of prison authorities with Mr. Bajpai amount to mental harassment and torture
during the delay of death penalty so as to constitute acquittal?

What is the maintainability of Public Interest Litigation for unreasonable delay of Death penalty?

clemency jurisdiction offers a non-judicial final opportunity for prisoners.

Section 84 IPC

Shatrugan Chauhan and another vs Union of India and others- it is submitted that because of
inordinate delay in disposal of his Mercy Petition, the death sentence be commuted to
imprisonment for life. It is also submitted that right from the day when the death
sentence was awarded i.e., from 09.04.2007, the petitioner has been incarcerated in
solitary confinement.
Section 105 in The Indian Evidence Act, 1872
105. Burden of proving that case of accused comes within exceptions.—When a person
is accused of any offence, the burden of proving the existence of circumstances bringing
the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or
within any special exception or proviso contained in any other part of the same Code, or
in any law defining the offence, is upon him, and the Court shall presume the absence of
such circumstances. Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not
know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he was
deprived of the power of self-control. The burden of proof is on A.
The burden of establishing the plea of self-defence is on the accused and the burden
stands discharged by showing preponderance of probabilities in favour of that plea on
the basis of material on record; Rizan v. State of Chhattisgarh, AIR 2003 SC 976.
Preponderance of the probabilities means that degree of certainty of belief in the mind of
the tribunal of fact or the Court by which it is convinced that the existence of a fact is
more probable than its non-existence.

In the case of Dhyabhai Chhaganbhal Thakkar v. State of Gujarat, , the Supreme Court
has again observed that "it is fundamental principle of criminal jurisprudence that an
accused is presumed to be innocent and, therefore, the burden lies on the prosecution
to prove the guilt of the accused beyond reasonable doubt.

While dealing with delay in execution of death sentence and the resultant effect, we must
note that the Mercy Petitions were forwarded by the Jail Authorities on the very day,
enclosing all the relevant judgments pertaining to the matter. The time of 3 years and 10
months taken in disposal of the Mercy Petition and communicating the decision thereon is
purely to the account of the authorities and functionaries concerned.

8. The question whether delay in execution of death sentence can be a sufficient ground
or reason for substituting such sentence by life imprisonment has engaged the attention of
this Court over a period of time.

(a) In T.V. Vatheeswaran v. State of Tamil Nadu[2] , in an appeal arising from the
Judgment of the High Court confirming the death sentence, the fact that the appellant was
awarded death sentence by the first court eight years earlier, was noted by this Court.
After referring to few earlier cases, where such delay during the pendency of the appellate
proceedings was considered, it was observed:

"20. ............. In the United States of America where the right to a speedy trial is a
constitutionally guaranteed right, the denial of a speedy trial has been held to entitle an
accused person to the dismissal of the indictment or the vacation of the sentence (vide
Strunk v. United States [1973] 37 L.Ed. 56). Analogy of American Law is not
permissible, but interpreting our Constitution sui generis, as we are bound to do, we find
no impediment in holding that the dehumanising factor of prolonged delay in the
execution of a sentence of death has the constitutional implication of depriving a person
of his life in an unjust, unfair and unreasonable way as to offend the constitutional
guarantee that no person shall be deprived of his life or personal liberty except according
to procedure established by law. The appropriate relief in such a case is to vacate the
sentence of death.

In the leading landmark case [Hussainara Khatoon Vs State of Bihar, (1980) 1 SCC 81], it
was held that Speedy Trial is an essential ingredient of right to life and liberty under Article
21 of the Constitution and it is the constitutional duty of the State to set up procedure to
ensure Speedy Trial...

In the case of [State of A.P. Vs Challa Ramkrishna Reddy, (2000) 5 SCC 712: AIR 2000 SC
2083], it was held that a prisoner is entitled to all his/her fundamental rights unless his/her
liberty has been constitutionally curtailed. The Supreme Court has emphasized that a
prisoner, whether a convict, under-trial or detenu, does not cease to be a human being and,
while lodged in jail, he/she enjoys all his/her fundamental rights guaranteed by the
Constitution of India including the right to life guaranteed by the Constitution of India. Even
a person is convicted and deprived of his/her liberty in accordance with the procedure
established by law; a prisoner still retains the residue of constitutional rights.

B hooraji and Ors. (2001) (7) SCC 679, the true essence of the expression "failure of
justice" was highlighted.

Art 72- Presidential pardon of death sentence.

Ajay Kumar Pal vs Union Of India And Anr on 12 December, 2014

WRIT PETITION (CRIMINAL) NO.128 OF 2014
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.
The court expressly recognized in a 2014 judgment that undue, inordinate
and unreasonable delay in execution of death sentence does certainly
attribute to torture. It is also contrary to international standards, besides
being ultra vires the Constitution.

“We are affirmatively of the view that in a civilized society, the execution of the sentence
of death cannot be carried out in such an arbitrary manner, keeping the prisoner in the
dark and without allowing him recourse and information. Essential safeguards must be
observed. Firstly, the principles of natural justice must be read into the provisions
of Sections 413 and 414 of Cr. P. C. and sufficient notice ought to be given to the convict
before the issuance of a warrant of death by the sessions court that would enable the
convict to consult his advocates and to be represented in the proceedings. Secondly, the
warrant must specify the exact date and time for execution and not a range of dates which
places a prisoner in a state of uncertainty. Thirdly, a reasonable period of time must
elapse between the date of the order on the execution warrant and the date fixed or
appointed in the warrant for the execution so that the convict will have a reasonable
opportunity to pursue legal recourse against the warrant and to have a final meeting with
the members of his family before the date fixed for execution. Fourthly, a copy of the
execution warrant must be immediately supplied to the convict. Fifthly, in those cases,
where a convict is not in a position to offer a legal assistance, legal aid must be provided.
These are essential procedural safeguards which must be observed if the right to life
under Article 21 is not to be denuded of its meaning and content.”

He also pointed out that this Court has laid down several guidelines to govern cases
involving capital punishment in the case of Shatrughan Chauhan v. Union of India & Ors.
[2] In the present case, we find that this Court pronounced the judgment dated 15.05.2015
confirming the death penalty and within six days of the dismissal of the criminal appeals
filed by these convicts, the learned Sessions Judge issued the death warrants on
21.05.2015. This is clearly impermissible and unwarranted for various reasons, as
discussed hereinafter: (I) First and foremost reason is that the convicts have not exhausted
their judicial and administrative remedies, which are still open to them even if their
appeals in the highest Court have failed affirming the imposition of death penalty. Those
appeals were filed via the route of Article 136 of the Constitution. However, law gives
such persons another chance, namely, to seek review of the orders so passed, by means of
filing of review petition. It is to provided under Article 137 of the Constitution. The
limitation of 30 days is prescribed for filing such review petitions. We have to emphasize
at this stage that in case of convicts facing death penalty, the remedy of review has been
given high procedural sanctity.

In the case of Mohd. Arif @Ashfaq v. Registrar, Supreme Court of India & Ors.[3], the
Constitution Bench of this Court has laid down that the review petition in a case of death
sentence shall be heard in the open court by giving an opportunity to the review petitioner
to make oral submissions, unlike other review petitions which are decided by the Court
by circulation in Chambers. Not only this, such a review petition is to be heard by a
Bench. We can also draw sustenance from another judgment of this Court in the case
of Sunil Batra v. Delhi Administration & Ors.[11] Though in the context of jail
conditions for those prisoners sentenced to death, the Court held that putting them in
solitary confinement was impermissible and provision to this effect was unconstitutional
and violative of a prisoner's fundamental rights under Article 21, 20(2), 19 and 14 of the
Constitution. The Court held that prisoner in jail still retains his fundamental rights. In the
eternal words of Justice V.R. Krishna Iyer in the said judgment: “And in our
constitutional order it is axiomatic that the prison laws do not swallow up the
fundamental rights of the legally unfree, and, as sentinals on the qui-vive, courts will
guard freedom behind bars, tempered, of course, by environmental realism but intolerant
of torture by executive echelons. The policy of the law and the paramountcy of the
Constitution are beyond purchase by authoritarians glibly invoking 'dangerousness' of
inmates and peace in prisons”. It is so obvious that the aforesaid ageless message has its
root in human dignity which has to be preserved even when a prisoner is sentenced to
death.” Thus, we hold that condemned prisoners also have a right to dignity and
execution of death sentence cannot be carried out in a arbitrary, hurried and secret manner
without allowing the convicts to exhaust all legal remedies.

We find that the procedure prescribed by the Hig

Can a special leave petition be filed or not

 The legal conception of insanity differs considerably from the medical conception. It is
not every form of insanity or madness that is recognised by law as a sufficient excuse.

9. The most elaborate and authoritative exposition of the Law of Insanity in common Law
is embodied in Daniel M' Naghten's case, (1843) 8 ER 718, in the answers of the fifteen
judges given in June, 1843 to the questions put to them by the Lords, in consequence of
the popular alarm provided by the acquittal of Daniel M' Naghten. The answers given by
the Judges in the said case have been taken, on all hands, to be an authoritative statement
of the Law of England on the subject of insanity as a bar to criminal responsibility. At
page 722, the learned Judges laid down inter alia that "every man is to be presumed to be
sane and to possess a sufficient degree of reason to be responsible for his crimes, until the
contrary be proved to their (Jury's) satisfaction; and that to establish a defence on the
ground of insanity, it must be clearly proved that, at the time of committing the act, the
party accused was labouring under such a defect of reason, from disease of the mind, as
not to know the nature and quality of the act he was doing; or, if he did know it, that he
did not know he was doing what was wrong" 

Section 84 I.P.C. has incorporated this definition of unsoundness of mind. It is recognised

on all hands as a good excuse. A reference in this connection may also be made to the
charge to the jury delivered by Mr. Justice M' Cardie in the well-known trial of Ronald
True at the Central Criminal Court, Old Bailey, in May, 1922 reported in the Notable
British Trials, Volume on Trial of Ronald True at page 246. It has thrown some revealing
 light on the subject and is inter alia as follows: "The law assumes that a man is prima
facie sane; he must satisfy you otherwise if he desires to escape the consequences of a
serious crime. The English law is complex both in civil and criminal cases with regard to
insanity ..

The defence of insanity is defined by the 'M'Naghten Rules', which were formulated
by judges in 1843 following the acquittal of Daniel M'Naghten

n accused person must be acquitted (though in trial on indictment the same orders
are available as on a verdict of unfitness to plead) if, at the time of committing the
'crime': a) because of a disease of the mind, he did not know the nature and quality of
his act; or b) even if he did know the nature and quality of his act, because of a
disease of the mind he did not know it was 'wrong'. The distinction between 'insanity'
and 'non-insane automatism' is that, in relation to the latter, the impairment of
consciousness causing physical involuntariness is the result of an external factor, eg a
blow to the head.

 Halsbury's Laws of England, 3rd. (Simonds) Edition, Vol-10, at page 287 that "where it
can be shown that a person at the time of his committing or omitting an act, the
commission or omission of which would otherwise be criminal, was labouring under
such a defect of reason, from disease of the mind, as not to know the nature and quality of
the act or omission or as not to know that what he was doing was wrong then such a
person is not in law responsible for his act

all persons who have reached the age of discretion (fourteen years) are presumed to be
sane, and criminally responsible and in cases where a person subject to attacks of
insanity has lucid intervals, the law presumes the offence of such persons to have been
committed in a lucid interval, unless it appears to have been committed in the time of his
distemper.

According to Section 329 of the Act, if the magistrate believes the person being
tried is of sound mind and incapable of self-defence, the magistrate ensures this by
having the subject evaluated by a medical professional.

A crime is a voluntarily act which is an outcome of an intent to cause an evil

consequence. There are certain essentials of crime. The actor must possess the
following conditions:

1.      free will;

2.      intelligence to distinguish between good and evil;

3.      knowledge of facts upon which the good and evil of an act may depend; and
4.      knowledge that the act is prohibited by law.

Mere abnormality of mind or partial delusion, irresistible impulse or

compulsive behavior of a psychopath affords no protection under
Section 84 IPC

In one of the landmark decisions, in the case of Surendra Mishra

versus state of Jharkhand,[20] the Apex Court has stated that an
accused who seeks exoneration from liability of an act under Section
84 of the IPC is to prove legal insanity and not medical insanity.
Further, it also said that expression “unsoundness of mind” has not
been defined in the IPC

There are some things which plainly are not insanity ... Mere eccentricity is not of itself
insanity.
A Constitution Bench of the Supreme Court in the case of Triveniben v. State of Gujarat 104
considered the question, and held that only executive delay, and not judicial delay, may be
considered as relevant in an Article 21 challenge. The Court said, “the only delay which would be
material for consideration will be the delays in disposal of the mercy petitions or delay occurring at
the instance of the Executive.”

Delay has been a matter of concern in the criminal justice system, with the adage ‘justice delayed is
justice denied’ being attributed to the plight of both victims of crime as well as the accused. Long
terms of incarceration, periods of which are on death row and in solitary confinement, have been
the concerns of courts through the years. In the case of T.V. Vatheeswaran v. State of Tamil Nadu
(‘Vatheeswaran’), 102 the Court held that a delay in execution of sentence that exceeded two years
would be a violation of procedure guaranteed by Article 21. However, in Sher Singh v. State of
Punjab, 103 it was held that delay could be a ground for invoking Article 21, but that no hard and
fast rule could be laid down that delay would entitle a prisoner to quashing the sentence of death

Since the order was given the high court and it was upheld in supreme court, it can be considered
from the facts that he filed a review petition In SC and Sc upheld it. There was no curative petition
as of such and mercy petition was filed thereafter.

Triveniben v. State of Gujarat, (1989) 1 SCC 678, at para 23=Undue long delay in execution of the
sentence of death will entitle the condemned person to approach this Court under Article 32 b

3.8.19 The UN Economic and Social Council (ECOSOC) has issued several resolutions prescribing
safeguards regarding how the death penalty should be imposed in countries where it is retained.
These safeguards comprise important limitations to the scope and application of the death penalty
in international law. 3.8.20 The first ECOSOC resolution titled “Safeguards guaranteeing protection
of the rights ofthose facing the death penalty” was adopted in 1984,152 and contained the following
nine safeguards:
In National Legal Services Authority v. Union of India, (2014) 5 SCC 438, for example, the Supreme
Court of India said: “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.”

For the meaning of pardon, reprieve, respite, etc, see State (Govt. of NCT of Delhi) v. Prem Raj,
(2003) 7 SCC 121, at para 10.

The Supreme Court observed the following in Shatrughan Chauhan: 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—
Contradiction is kehar case 1988.

Epuru Sudhakar v. Govt. of A.P-(2006)

Assuming that he filed the mercy petition after 90 days.

) Cases where it is alleged that fresh evidence is obtainable mainly with a view to see whether fresh
enquiry is justified; (d)Where the High Court on appeal reversed acquittal or on an appeal enhanced
the sentence; (e) Is there any difference of opinion in the Bench of High Court Judges necessitating
reference to a larger Bench; (f) Consideration of evidence in fixation of responsibility in gang murder
case; (g) Long delays in investigation and trial etc.

Sunder Singh- 2014- Contradiction.

Gurmeet Singh’s Writ [Writ Petition (Crl.) No. 193/2013] was considered in the batch matter
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1. See paras 148-16 for the outcome in Writ
Petition (Crl.) No. 193/2013. See also Gurmeet Singh v. State of U.P., (2005) 12 SCC 107---Gurmeet
was arrested on 16.10.1986, convicted and sentenced to death by the trial court on 20.7.1992. The
High Court confirmed his death sentence (per majority) on 8.3.1996, and the Supreme Court upheld
the conviction and death sentence on 28.9.2005. The convict’s mercy petition was decided on
1.3.2013, by which time he had spent 27 years in custody, of which about 21 years were under a
death sentence. These factors were ignored and his mercy petition was rejected. The Supreme Court
in Shatrughan Chauhan commuted the death sentence of Gurmeet Singh on account of inordinate
time taken by the executive in disposal of his mercy petition.

A prisoner under a sentence of death ekes out an existence under the hangman’s noose and suffers
from extreme agony, anxiety and debilitating fear of an impending execution and uncertainty
regarding the same. The amalgam of such unique circumstances produces physical and psychological
conditions of neartorture for the death row convict.747 This experience thus endured by a prisoner
on the death row is also termed as ‘death row phenomena’

The Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu748 and thereafter in Sher Singh v.
State of Punjab749 (‘Sher Singh’) and Triveniben v. State of Gujarat750 (‘Triveniben’) has recognized
the degrading and dehumanizing nature of the suffering endured by a death row convict on account
of prolonged delay in the execution of his death sentence. The Court has treated prolonged delay as
a “supervening circumstance” which has the effect of rendering the sentence of death inexecutable.

Over the years, an international consensus has emerged around the fact that execution after
avoidable delay under the harsh conditions of death row constitutes cruel and excessive
punishment. Soering v. United Kingdom, 161 Eur. Ct. H.R. at 154 (1989); Francis v. Jamaica (No.
606/1994). UN Doc. CCPR/C/54/D/606/1995 (1995); Pratt v. The Attorney General for Jamaica, Privy
Council Appeal No. 10, 22 (1993).The Privy Council in Pratt [1994] 2 A.C. 33 held that "it was torture,
far more cruel that death itself, for a person

In 1962 when the Law Commission was examining the question of abolition of the death penalty,
they sought information from the MHA on the principles followed in dealing with mercy petitions.
Noting that they were ‘well understood’ an Under Secretary of the MHA stated that they fell
‘broadly into the following grounds, viz. age, sex, mental deficiency, grave or sudden provocation,
absence of motive and premeditation. There are other grounds which are also taken into
consideration i.e. inadequacy of evidence, long delays in investigation and trial,=Court of Last
Resort- A study of the constitutional clemency for Capital crimes in India by Bikram Jeet Batra

Pg 23 the first para==0 Note by Gulzar Singh, Under Secretary MHA dated 11 June 1962, File no.
MHA (Judicial –II) 19/61/62, NAI.{ Evidence}

The Supreme Court in Aloke Nath and Bariyar has doubted the award of death sentence in Saibanna
v. State of Karnataka (‘Saibanna’). The facts of the case bear out that Saibanna had killed his first
wife as he suspected that she was unfaithful to him. He was convicted and sentenced to life
imprisonment on 2.2.1993. He re-married whilst he was out of the prison on parole. Later, on
13.9.1994 when he was again released on parole, he killed his second wife as well suspecting that
she too was unfaithful to him. In 1995 he was charged under Section 303 IPC, which prescribed the
mandatory death sentence, even though the Section had already been struck down. Supreme Court
in Mithu v. State of Punjab (‘Mithu’).740 The High Court proceeded to confirm the death sentence
under Section 303 IPC. The Supreme Court in appeal upheld the judgment. The Court held that
Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again,
and therefore the death sentence was the only available punishment.

This admission of error in Saibanna’s case by the Supreme Court was also brought to the notice of
the President by 14 retired judges (including one former Supreme Court judge, five former Chief
Justices of different High Courts, and eight former High Court judges). The President rejected
Saibanna’s mercy petition on 4.1.2013.—Inconsistent with mithu and Bachan Singh.

In Vatheeswaran v. State of Tamil Nadu Chinnappa Reddy J. said at page 353:- ....The court held that
delay exceeding two years in the execution of a sentence of death should be sufficient to entitle a
person under sentence of death to demand the quashing of his sentence on the ground that it
offended against Article 21 of the Indian Constitution which provides- No person shall be deprived of
his life or personal liberty except according to procedure established by law.

As per the Prison Manuals, which vary from State to State, execution can be cheduled from one day
to 14 days of informing the prisoner of rejection of mercy petition. This was blatantly violated in the
case of Afzal Guru who was denied the opportunity to challenge the rejection of his mercy petition
by the President and was executed on 09.02.2013 in secrecy.14 The family members of Guru were
not informed about the rejection of the mercy petition and about his scheduled execution-- received
by his family members two days after his execution at Tihar Jail, Delhi
Sundar singh commuted sentence- mentally unfit declared by doctors.

They concluded that Sundar Singh “is suffering from chronic psychotic illness and he needs long term
management”. As per records, the prison authorities sent the report of the team of psychiatrists to
the MHA. Yet, on 31.03.2013 the President rejected the mercy petition of Sundar Singh on the
recommendation of the MHA.

Justice Naik, while agreeing with the conviction of the appellant by the trial Court, was of the view
that “as a rule death sentence should be imposed only in the rarest of rare cases in order to
eliminate the criminal from society, but the same object could also be achieved by isolating the
criminal from society by awarding life imprisonment for the remaining term of the criminal’s natural
life”—Case of BA Umesh.

Shatrugan Sinha case- Solitary confinement, legal aid. Procedure for mercy petition.

In Sher Singh decided in 1983, the Supreme Court observed “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.” However, the government had ignored this advice
as is evident from the delay in disposal of mercy petitions involving a number of death row
convicts.

cases in T.V. Vatheeswaran v. State of Tamil Nadu117 (1983), Sher Singh v. State of Punjab118
(1983), Triveniben v. State of Gujarat119 (1988), Madhu Mehta v. Union of India120 (1989), Daya
Singh v. Union Of India121 (1991), Mahindra Nath Das v. Union Of India122 (2013), Devender Pal
Singh Bhullar v. State Of NCT of Delhi123 (2013) etc

Section 432(2) CrPC provides that whenever an application is made to the government for
remission of a sentence, the government may require the presiding judge of the court by which
the conviction was confirmed, to state his opinion as to whether the application should be granted
or refused together with his reasons for such opinion.

imilarly, death penalty of Kheraj Ram was commuted in State of Rajasthan v. Kheraj Ram155. The
accused was convicted for murder of his wife, his two children and brother in law on suspicion of
infidelity on the part of his wife. Though the conviction was based on circumstantial evidence but
the same conclusively established the guilt of the accused.—V.IMP

even if the consitutition doesn’t specify the time limit for signing a mercy petition, should the life of
the convict be left hanging in a constant state of doubt- wouldn’t that be contrary to the constitution

 Death Penalty given by subordinate Court (certified by HC) -->Appealed in High

Court -->Appealed in Supreme Court -->Final Judgement ->Review petition --
>Curative Petition -->Mercy Plea -->Repeated petition

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”

 Thus, the argument that the petitioners are under a legal obligation to produce
evidence of their sufferings and harm caused to them on account of prolonged delay is
unknown to law and will be misinterpretation of Shatrughan Chauhan
V.sriharan v. murugan
 Thus, the argument that the petitioners are under a legal obligation to produce
evidence of their sufferings and harm caused to them on account of prolonged delay is
unknown to law and will be misinterpretation of Shatrughan Chauhan
DR. SUBHASH VIJAYRAN ... PETITIONER VERSUS UNION OF INDIA & OTHERS … RESPONDENT

Filed writ petition pil mandamus.

Renuka @ Rinku @ Ratan Kiran Shinde ... vs Union Of India And Ors on 18
January, 2022
Bench: Nitin Jamdar, S. V. Kotwal
Bombay high court case on commute- 2022

Shatrugan Sinha judgement summary

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.
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.
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)
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.
) 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.
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:

106- “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”.
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

Guidelines by MHA in 1962

Cases in which the Appellate court has expressed its doubt as to the reliability of the evidence and
has nevertheless decided on conviction III. Cases where it is alleged that fresh evidence is obtainable
mainly with a view to seeing whether fresh enquiry is justified IV. Where the High Court has reversed
on appeal an acquittal by

commuted the sentence on the grounds that the evidence left some scope for doubt or did not
show ‘cent per cent reliability’=Petition of Manickam, File no. MHA (Judicial-1) 32/2/62, NAI. Other
similar reasons include ‘Many holes in the evidence’ in Petition of Joseph Thomas, File no. MHA
(Judicial-1) 32/186/61, NAI; ‘Circumstantial evidence not without holes’ in Petition of Dhakkan, File
no. MHA (Judicial-1) 32/185/61, NAI; ‘generally poor evidence’ in Petition of Subramaniam, File no.
MHA (Judicial-1) 32/172/61, NA

While such presumptions are avoidable, it is clear that the executive has in practice evolved and
practiced a higher threshold for the evidence before rejecting the petition.

In a case where a man killed his wife (and the son) suspecting her of infidelity, the executive noted
that the defence case was not properly thought of and a wrong defence made out on the
petitioner’s behalf. 101 This resulted in the petitioner being found guilty by the court despite strong
comments on the inadequate defence of the petitioner. The Minister of State for Home Affairs, also
finding that witnesses for the prosecution were not even properly crossexamined, recommended
commutation of the sentence, noting that he was ‘amazed at the utter incompetency of the defence
put forward on behalf of the petitioner==Mercy petition of ‘Haridas Ramdas @ Abdul Rashid Abdul
Rehman’, File no. MHA (Judicial–1) 32/96/58, NAI
by Chief Justice Chandrachud in K.P. Mohammed suggesting that the State accept a self-imposed
rule and decide on mercy petitions within three months=K.P. Mohammed v. State of Kerala, 1984
Supp SCC 684.