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T.V Vatheeswaran / v. State Of Tamil Nadu .
Factual and Procedural Background
The appellant was convicted in January 1975 as the principal architect of a conspiracy involving impersonation of Customs Officers, abduction, robbery and murder. The Sessions Judge imposed the death penalty. After conviction he spent roughly ten years in prison—two years as an under-trial detainee and the subsequent eight years in solitary confinement, a practice already disapproved in Sunil Batra v. Delhi Administration. Claiming that it would now be unconstitutional to execute him, the prisoner approached the Supreme Court by way of a special-leave petition and a writ petition under Article 32, contending that the prolonged delay and conditions of confinement violated Article 21 of the Constitution.
Legal Issues Presented
- Whether the execution of a death sentence after an inordinate delay—here, approximately eight years of post-conviction incarceration in solitary confinement—constitutes a violation of the prisoner’s fundamental right to life under Article 21.
- Whether the cause of that delay is relevant, or if any prolonged delay per se renders the execution constitutionally impermissible.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sunil Batra v. Delhi Administration (1978) 4 SCC 494 | Solitary confinement and prison conditions must satisfy Articles 14, 19 and 21. | Noted that petitioner’s eight-year solitary confinement was contrary to this ruling, reinforcing the inhumanity of delay. |
| Piare Dusadh v. King Emperor, AIR 1944 FC 1 | One-year delay in execution justified commutation. | Presented as early Indian authority for considering delay as a mitigating factor. |
| Ediga Anamma v. State of A.P. (1974) 4 SCC 443 | “Brooding horror of hanging” for two years is a humane consideration in sentencing. | Cited to show that two-year delay had previously led to commutation. |
| State of U.P. v. Lalla Singh (1978) 1 SCC 142 | Six-year lapse since offence militated against confirming death sentence. | Supports the proposition that long delay diminishes justification for capital punishment. |
| Bhagwan Bux Singh v. State of U.P. (1978) 1 SCC 214 | Delay of 2½ years sufficient to commute to life imprisonment. | Used as precedent for quantifying “prolonged” delay. |
| Sadhu Singh v. State of U.P. (1978) 4 SCC 428 | 3 years 7 months on death row warranted commutation. | Further illustration of judicial intolerance to execution after delay. |
| State of U.P. v. Sahai (1982) 1 SCC 352 | Eight-year delay viewed as reason against imposing death penalty. | Parallels the present factual matrix. |
| Furman v. Georgia, 33 L Ed 2d 346 (1972) | Psychological torment of awaiting execution is cruel and unusual. | Quoted to emphasise the “frightful toll” of delayed executions. |
| Noel Riley v. Attorney-General (1982 Cr L R 679) – minority opinion | Prolonged delay can make hanging “inhuman and degrading.” | Relied upon for persuasive value; Court adopted and extended minority view. |
| Maneka Gandhi v. Union of India (1978) 1 SCC 248 | Procedure under Article 21 must be fair, just and reasonable; Articles 14, 19, 21 are inter-related. | Formed constitutional foundation for declaring delayed execution unfair and unreasonable. |
| A.K. Gopalan v. State of Madras, AIR 1950 SC 27 | Earlier restrictive view of Article 21. | Contrasted with later expansive approach to underline evolution of constitutional jurisprudence. |
| Bhuvan Mohan Patnaik v. State of A.P. 1974 SCC (Cri) 803 | Convicts retain fundamental rights, including Article 21. | Used to rebut any suggestion that death-row prisoners lack constitutional protection. |
| State of Maharashtra v. Prabhakar Pandurang Sangzgiri, AIR 1966 SC 424 | Detention “privileges” are enforceable rights. | Cited to show constitutional scrutiny applies inside prisons. |
| State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610 | Right to speedy trial implicit in Article 21. | Analogy drawn between trial delay and post-sentence delay. |
| Hussainara Khatoon (I) & (IV) (1980) 1 SCC 81, 98 | Speedy trial and free legal aid are part of “reasonable, fair and just” procedure. | Extended principle of reasonableness to post-conviction stage. |
| M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544 | Legal aid as an essential component of Article 21 procedure. | Reinforces breadth of humane procedural guarantees. |
| Strunk v. United States, 37 L Ed 2d 56 (1973) | Denial of speedy trial warrants dismissal or vacation of sentence. | Used analogically to justify remedy of vacating death sentence. |
| Rajendra Prasad v. State of U.P. (1979) 3 SCC 646 | Referenced within discussion of international jurisprudence on cruelty. | Cited in support of the view that delay can render execution cruel. |
| Tyrer v. United Kingdom, ECHR | International recognition of “inhuman or degrading” punishment. | Included in comparative survey emphasising universal condemnation of delayed executions. |
Court's Reasoning and Analysis
1. The Court began by acknowledging the heinous nature of the crimes but emphasised that justice “is not Shylock’s pound of flesh.” Prisoners retain fundamental rights, including Article 21 protections.
2. Surveying Indian and foreign case-law, the Court found a consistent judicial trend: prolonged delay on death row acts as a mitigating factor and may render execution inhuman.
3. Relying on Maneka Gandhi, Sunil Batra and related precedents, the Bench reiterated that “procedure established by law” must be fair, just and reasonable. This procedural guarantee extends beyond conviction to the carrying out of the sentence.
4. The Court declared that the psychological torment inherent in awaiting execution for years—compounded here by eight years of illegal solitary confinement—constitutes an “unjust, unfair and unreasonable” procedure, offending Article 21.
5. It rejected the argument that the source of delay mattered, holding that any inordinate delay, whether attributable to appeals, executive processes or the prisoner himself, retains the same “dehumanising character.”
6. After reviewing prior commutations based on shorter delays, the Court settled on a concrete guideline: a delay exceeding two years from the confirmation of a death sentence is presumptively unconstitutional.
7. Applying that guideline, the Court concluded that the petitioner’s ten-year wait—eight spent in conditions previously ruled unlawful—mandated relief. The only effective remedy was to vacate the death sentence and substitute life imprisonment.
Holding and Implications
HELD: The special-leave petition and writ petition are allowed; the death sentence is QUASHED and replaced with IMPRISONMENT FOR LIFE.
Implications: The judgment sets a clear benchmark that a delay of more than two years in executing a death sentence will ordinarily violate Article 21. It therefore creates a substantive constitutional limitation on the death penalty’s enforcement, ensuring that prolonged post-sentence incarceration cannot culminate in execution. While the ruling directly benefits the appellant, it establishes a broader safeguard for all prisoners on death row in India.
Chinnappa Reddy, J.— A prisoner condemned to death over eight years ago claims that it is not lawful to hang him now. Let us put the worst against him first. He was the principal accused in the case and, so to say, the arch-villain of a villainous piece. He was the brain behind a cruel conspiracy to impersonate Customs Officers, pretend to question unsuspecting visitors to the city of Madras, abduct them on the pretext of interrogating them, administer sleeping pills to the unsuspecting victims, steal their cash and jewels and finally murder them. The plan was ingeniously fiendish and the appellant was the architect. There is no question that the learned Sessions Judge very rightly sentenced him to death. But that was in January 1975. Since then he has been kept in solitary confinement, quite contrary to our ruling in Sunil Batra v. Delhi Administration (1978) 4 SCC 494, AIR 1978 SC 1675, (1979) 1 SCR 392, 1978 Cri LJ 1741. Before that he was a “prisoner under remand” for two years. So, the prisoner claims that to take away his life after keeping him in jail for 10 years, eight of which in illegal solitary confinement, is a gross violation of the Fundamental Right guaranteed by Article 21 of the Constitution. Let us examine his claim. First, let us get rid of the cobwebs of prejudice. Sure, the murders were wicked and diabolic. The appellant and his friends showed no mercy to their victims Why should any mercy be shown to them? But, gently, we must remind ourselves it is not Shylock's pound of flesh that we seek, nor a chilling of the human spirit. It is justice to the killer too and not justice untempered by mercy that we dispense. Of course, we cannot refuse to pass the sentence of death where the circumstances cry for it. But, the question is whether in a case where after the sentence of death is given, the accused person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to suffer the most excruciating agony and anguish, is it not open to a Court of appeal or a court exercising writ jurisdiction, in an appropriate proceeding, to take note of the circumstance when it is brought to its notice and give relief where necessary?
2. Before adverting to the constitutional implications of prolonged delay in the execution of a sentence of death, let us refer to the judicial attitude towards such delay in India and elsewhere.
3. In Piare Dusadh v. Emperor AIR 1944 FC 1, (1944) 6 FCR 61 the Federal Court of India took into consideration the circumstance that the appellant had been awaiting the execution of the death sentence for over a year to alter the sentence to one of transportation for life.
4. In Ediga Anamma v. State of A.P (1974) 4 SCC 443, (1974) 3 SCR 329 Krishna Iyer and Sarkaria, JJ. observed that “the ‘brooding horror of hanging’ which has been haunting the prisoner in her condemned cell for over two years” had an ‘ameliorative impact’ and was ‘a factor of humane significance in the sentencing context’.
5. In State of U.P v. Lalla Singh (1978) 1 SCC 142, AIR 1978 SC 368, 1978 Cri LJ 359 Gupta and Kailasam, JJ., were dealing with a case of gruesome murder of three persons, the head of one of whom was severed. The learned Judges, while of the view that the Sessions Judge was perfectly in order in imposing the sentence of death, thought that as the offences had been committed more than six years ago, the ends of justice did not require the sentence of death to be confirmed.
6. In Bhagwan Bux Singh v. State of U.P. (1978) 1 SCC 214, AIR 1978 SC 34, 1978 Cri LJ 153 the sentence of death was commuted to imprisonment for life by Murtaza Fazal Ali and Kailasam, JJ., having particular regard to the fact that the sentence of death had been imposed more than two and a half years ago.
7. In Sadhu Singh v. State of U.P (1978) 4 SCC 428, AIR 1978 SC 1506 Sarkaria, A.P Sen, JJ., and one of us (Chinnappa Reddy, J.) took into account the circumstance that the appellant was under spectre of the sentence of death for over three years and seven months to alter the sentence of death to one of imprisonment for life.
8. In State of U.P v. Sahai (1982) 1 SCC 352, AIR 1981 SC 1442, 1981 Cri LJ 1034 Murtaza Fazal Ali, Baharul Islam and Varadarajan, JJ., while holding that the murders were “extremely gruesome, brutal and dastardly”, nonetheless declined to pass the sentence of death on the ground that more than eight years had elapsed since the occurrence.
9. In Furman v. State of Georgia 33 L Ed 2d 346 (1972) Justice Brennan observed:
“The prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.”
10. In Noel Riley v. Attorney-General 1982 Criminal Law Review 679 the majority of the Lords of the Judicial Committee of the Privy Council expressed no opinion on the question whether the delayed execution of a sentence of death by hanging could be described as “inhuman or degrading punishment”. But Lord Scarman and Lord Brightman who gave the minority opinion, after referring to the British practice and Furman v. State of Georgia 33 L Ed 2d 346 (1972) People v. Chessman, People v. Andersen, Ediga Anamma v. State of A.P (1974) 4 SCC 443, (1974) 3 SCR 329, Rajendra Prasad v. State of U.P (1979) 3 SCC 646 and Tyrer v. United Kingdom, said:
“It is no exaggeration, therefore, to say that the jurisprudence of the civilised world, much of which is derived from common law principles and the prohibition against cruel and unusual punishments in the English Bill of Rights, has recognised and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading. As the Supreme Court of California commented in Anderson case it is cruel and has dehumanising effects. Sentence of death is one thing: sentence of death followed by lengthy imprisonment prior to execution is another.
It is of course true that a period of anguish and suffering is an inevitable consequence of sentence of death. But a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not. And it is no answer to say that the man will struggle to stay alive. In truth, it is this ineradicable human desire which makes prolongation inhuman and degrading. The anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional, and physical integrity and health of the individual are vividly described in the evidence of the effect of the delay in the circumstances of these five cases. We need not rehearse the facts, which are not in dispute. We do not doubt that the appellants have proved that they have been subjected to a cruel and dehumanising experience....
Prolonged delay when it arises from factors outside the control of the condemned man can render a decision to carry out the sentence of death an inhuman and degrading punishment. It is, of course, for the applicant for constitutional protection to show that the delay was inordinate, arose from no act of his, and was likely to cause such acute suffering that the infliction of the death penalty would be in the circumstances which had arisen inhuman or degrading. Such a case has been established, in our view, by these appellants.”
11. While we entirely agree with Lord Scarman and Lord Brightman about the dehumanising effect of prolonged delay after the sentence of death, we enter a little caveat, but only that we may go further. We think that the cause of the delay is immaterial when the sentence is death. Be the cause for the delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanising character of the delay.
12. What are the constitutional implications of the dehumanising factor of prolonged delay in the execution of a sentence of death? Let us turn at once to Article 21 of the Constitution, for, it is to that Article that we must first look for protection whenever life or liberty is threatened. Article 21 says: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The dimensions of Article 21 which at one time appeared to be constricted by A.K Gopalan v. State of Madras AIR 1950 SC 27, 1950 SCR 88, 1950 SCJ 174, 51 Cri LJ 1383 have been truly expanded by Maneka Gandhi v. Union of India (1978) 1 SCC 248, AIR 1978 SC 597, (1978) 2 SCR 621 and Sunil Batra v. Delhi Administration (1978) 4 SCC 494, AIR 1978 SC 1675, (1979) 1 SCR 392, 1978 Cri LJ 1741.
13. In Maneka Gandhi v. Union of India (1978) 1 SCC 248, AIR 1978 SC 597, (1978) 2 SCR 621 it was held that the various articles of the Constitution in Part III (Fundamental Rights) were not several, isolated walled fortresses, each not reacting on the other, but, on the other hand, were parts of a great scheme to secure certain basic rights to the citizens of the country, each article designed to expand but never to curtail the content of the right secured by the other article. No article was a complete code in itself and several of the Fundamental Rights guaranteed by Part III of the Constitution overlapped each other. So, a law satisfying the requirements of Article 21 would still have to meet the challenge of Article 14 and Article 19 of the Constitution. In regard to Article 21 itself, it was held that the procedure contemplated by the article had to be fair, just and reasonable, and not some semblance of procedure, fanciful, oppressive or arbitrary. Chandrachud, J. (as he then was) said:
“But the mere prescription of some kind of procedure cannot ever meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.”
Chandrachud, J. expressed his total agreement with Bhagwati, J.'s following observations:
“The law must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article.”
Bhagwati, J. further observed:
“But apart altogether from these observations in A.K Gopalan case (1980) 2 SCC 684, AIR 1980 SC 898, 1980 Cri LJ 636 which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21.”
Again he said:
“The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be ‘right and just and fair’ and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.”
14. In Sunil Batra v. Delhi Administration (1978) 4 SCC 494, AIR 1978 SC 1675, (1979) 1 SCR 392, 1978 Cri LJ 1741 Krishna Iyer, J. while dealing with the question whether solitary confinement could be inflicted on a person awaiting death sentence, observed: [SCC para 52, pp. 518-19: SCC (Cri) pp. 179-80]
“True, our Constitution has no ‘due process’ clause or the VIII Amendment; but, in this branch of law, after Cooper (1970) 1 SCC 248, (1970) 3 SCR 530 and Maneka Gandhi (1978) 4 SCC 494, AIR 1978 SC 1675, (1979) 1 SCR 392, 1978 Cri LJ 1741 AIR 1944 FC 1, (1944) 6 FCR 61 the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner's shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or under-trial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Article 19) become chimerical constitutional claptrap....”
In the same case, Desai, J. said: [SCC para 228, pp. 574-75: SCC (Cri) pp. 235-36]
“The word ‘law’ in the expression ‘procedure established by law’ in Article 21 has been interpreted to mean in Maneka Gandhi case 1974 SCC (Cri) 803, (1975) 3 SCC 185, AIR 1974 SC 2092, (1975) 2 SCR 24 that the law must be right, just and fair, and not arbitrary, fanciful or oppressive. Otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. If it is arbitrary it would be violative of Article 14....”
15. In Bachan Singh v. State of Punjab (1980) 2 SCC 684, AIR 1980 SC 898, 1980 Cri LJ 636 Sarkaria, J. summarised the effect of Maneka Gandhi in these words: [SCC para 135, pp. 729-30: SCC (Cri) pp. 625-26]
“In Maneka Gandhi case (1978) 1 SCC 248, AIR 1978 SC 597, (1978) 2 SCR 621, which was a decision by a Bench of seven learned Judges, it was held by Bhagwati, J. in his concurring judgment, that the expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights under Article 19. It was further observed that Articles 14, 19 and 21 are not to be interpreted in watertight compartments, and consequently, a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex hypothesi it must also be liable to be tested with reference to Article 14. The principle of reasonableness pervades all the three Articles, with the result, that the procedure contemplated by Article 21 must be ‘right and just and fair’ and not ‘arbitrary, fanciful or oppressive; otherwise, it should be no procedure at all and the requirement of Article 21 would not be satisfied.”
The learned Judge then referred to Article 21 and said, [SCC para 136, p. 730: SCC (Cri) p. 626]
If th”is Article is expanded in accordance with the interpretative principle indicated in Maneka Gandhi 1974 SCC (Cri) 803, (1975) 3 SCC 185, AIR 1974 SC 2092, (1975) 2 SCR 24, it will read as follows:
‘No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.
In the converse positive form, the expanded Article will read as below:’
A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.'
Thus expanded and read for interpretative purposes, Article 21 clearly brings out the implication, that the founding fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.. . .”
16. The question whether a prisoner under a lawful sentence of death or imprisonment could claim Fundamental Rights was considered in Bhuvan Mohan Patnaik v. State of A.P 1974 SCC (Cri) 803, (1975) 3 SCC 185, AIR 1974 SC 2092, (1975) 2 SCR 24 Chandrachud, J. (as he then was) declared: [SCC (Cri) para 6, pp. 804-05:]
“Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to ‘practise’ a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.”
17. The declaration of Chandrachud, J. in Bhuvan Mohan Patnaik case (1980) 1 SCC 81 was quoted with approval and accepted by the Constitution Bench in Sunil Batra v. Delhi Administration (1978) 4 SCC 494, AIR 1978 SC 1675, (1979) 1 SCR 392, 1978 Cri LJ 1741.
18. We may also refer here to State of Maharashtra v. Prabhakar Pandurang Sangzgiri AIR 1966 SC 424, (1966) 1 SCR 702, (1966) 1 SCJ 679, 1966 Cri LJ 311 where a Constitution Bench repelled the argument that the Bombay Conditions of Detention Order, 1951 conferred privileges but not rights on the detenu with the observation:
“If this argument were to be accepted, it would mean that the detenu could be starved to death if there was no condition providing for giving food to the detenu.”
19. The court has also recognised that the right to life and liberty guaranteed by Article 21 of the Constitution includes the right to a speedy trial. The right to a speedy trial may not be an expressly guaranteed Constitutional right in India, but it is implicit in the right to a fair trial which has been held to be part of the right to life and liberty guaranteed by Article 21 of the Constitution. After referring to situations where an accused person may be seriously jeopardised in the conduct of his defence with the passage of time, it was observed by one of us (Chinnappa Reddy, J.) in State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610, AIR 1981 SC 1675: [SCC para 1, p. 612: SCC (Cri) p. 764]
“In such situations, in appropriate cases, we may readily infer an infringement of the right to life and liberty guaranteed by Article 21 of the Constitution. Denial of a speedy trial may with or without proof of something more lead to an inevitable inference of prejudice and denial of justice. It is prejudice to a man to be detained without trial. It is prejudice to a man to be denied a fair trial. A fair trial implies a speedy trial....”
Earlier in Hussainara Khatoon (i) v. Home Secretary, State of Bihar (1980) 1 SCC 81 it was observed by Bhagwati, J.: [SCC para 5, p. 89: SCC (Cri) p. 31]
“If a person is deprived of his liberty under a procedure which is not ‘reasonable, fair or just’, such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be ‘reasonable, fair or just’ unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21....”
In Hussainara Khatoon (IV) v. Home Secretary, State of Bihar (1980) 1 SCC 98 the principle was reaffirmed and Bhagwati, J. added: [SCC para 10, p. 107: SCC (Cri) p. 49]
“Speedy trial is, as held by us in our earlier judgment dated February 26, 1979, an essential ingredient of ‘reasonable, fair and just’ procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused....”
In the same case, it was further observed that the right to free legal services was implicit in Article 21 as no procedure could be said to be reasonable, fair and just which did not provide for legal services to those who could not secure them themselves. That free legal services to the poor and the needy was an essential element of any reasonable, fair and just procedure had already been decided in M.H Hoskot v. State of Mdharashtra (1978) 3 SCC 544.
20. So, what do we have now? Articles 14, 19 and 21 are not mutually exclusive. They sustain, strengthen and nourish each other. They are available to prisoners as well as free men. Prison walls do not keep out Fundamental Rights. A person under sentence of death may also claim Fundamental Rights. The fiat of Article 21, as explained, is that any procedure which deprives a person of his life or liberty must be just, fair and reasonable. Just, fair and reasonable procedure implies a right to free legal services where he cannot avail them. It implies a right to a speedy trial. It implies humane conditions of detention, preventive or punitive. “Procedure established by law” does not end with the pronouncement of sentence; it includes the carrying out of sentence. That is as far as we have gone so far. It seems to us but a short step, but a step in the right direction, to hold that prolonged detention to await the execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death. 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 2d 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.
21. What may be considered prolonged delay so as to attract the Constitutional protection of Article 21 against the execution of a sentence of death is a ticklish question. In Ediga Anamma case (1974) 4 SCC 443, (1974) 3 SCR 329 delay of two years was considered sufficient to justify interference with the sentence of death. In Bhagwan Bux case (1978) 1 SCC 214, AIR 1978 SC 34, 1978 Cri LJ 153 two and a half years and in Sadhu Singh case (1978) 4 SCC 428, AIR 1978 SC 1506 three and a half years were taken as sufficient to justify altering the sentence of death into one imprisonment for life. The Code of Criminal Procedure provides that a sentence of death imposed by a Court of Session must be confirmed by the High Court. The practice, to our knowledge, has always been to give top priority to the hearing of such cases by the High Courts. So also in this Court. There are provisions in the Constitution (Articles 72 and 161) which invest the President and the Governor with power to suspend, remit or commute a sentence of death. Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death. We, therefore, accept the special leave petition, allow the appeal as also the writ petition and quash the sentence of death. In the place of the sentence of death, we substitute the sentence of imprisonment for life.
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