By – Devanshi Srivastava
In The Supreme Court of India
|NAME OF THE CASE||Shabnam vs Union Of India And Anr.|
|CITATION||Writ Petition (Criminal) No. 88 of 2015 with Writ Petition (Criminal) No. 89 of 2015|
|DATE OF THE CASE||May 27, 2015|
|RESPONDENT||Union of India and Ors.|
|BENCH/JUDGE||Dr. A.K. Sikri and Uday U. Lalit, JJ.|
|STATUES INVOLVED||Constitution of India, 1949, Criminal Procedure Code, 1973 and Indian Penal Code, 1860.|
|IMPORTANT SECTIONS AND ARTICLES||Article 21, 136, 137, 72,161 and 32 of the Indian Constitution 1949, Section 413 to 415 of the Code of Criminal Procedure, 1973 and Section 302 of the Indian Penal Code, 1860.|
The prisoners have the right for filing petitions in view of being granted mercy. The rights of the prisoners cannot be jeopardized under a hasty and unreasonable verdict or decision of a Court of Law. The law specifies and establishes a procedural law for the measures to be sought by the prisoners as remedies specifically in the case of a death sentence. The death and life of a human depending on the verdict upon the verdict of a court of law, thus, it has to be ‘fair, just and reasonable. Since life, once gone cannot be brought back.
The dignity of an individual is the premiere priority and thus, the prisoners also have the right by law to be treated with humane and equitable treatment. The rights of the prisoners have to be preserved. Furthermore, in the absence of knowledge of the rights, the prisoners have to be made cognizant of the same to allow them to exhaust their legal remedies under an established procedure of law.
The case deals with the arbitrary decision of the Sessions court in heralding the death sentence to the convicts. The Supreme Court, thereby, lays down an absolute rule as the procedure for the convicts to resort to legal aids and means before the death execution. Here, the fact to be highlighted is that convicts must be treated as “innocent until proven guilty”.
The case revolves around two Writ Petitions filed by the Petitioners (herein referred to as the ‘convicts’). The Judgement pronounced by the Sessions Court for the two convicts on 15th July 2010 was a death sentence for committing murder. The decision was subjected to affirmation by the High Court.
The Allahabad High Court confirmed the order through a judgement on 26th April 2013. The Judgement was thereby questioned and challenged in the Court on 15th May 2015. The convicts challenged the order, however, their plea was sidelined by this Court. Thus, the death sentence was acclaimed.
On 21st May 2015, death warrants were issued by the Sessions Judge, seeing which the convicts filed two writ petitions. The petitions clearly stated the impermissibility of the warrants as violative of Article 21 of the Indian Constitution and non-applicable in the presence of the legal remedies available to the convicts.
Background of the Case
Article 21 of the Constitution guarantees the Right to Personal Life and Liberty and thus, the Right to Dignity is a part of it. An individual can be deprived of the said right only on the basis of an established procedure of law and not merely on grounds of ‘fanciful or arbitrary’ decisions. The procedure of law is sacrosanct and the same cannot be sidelined due to unfair procedure.
The imprisoner with a death sentence has the right to be provided with legal aid in case of non-affordability. In the present case, the convicts are being deprived of their life without the absolute exhaustion of the legal remedies guaranteed to them. The time period provided for the death sentence is also arbitrary in nature.
The prisoners have the right to resort to mercy petitions under Articles 72 and 161 for the President and the Governor respectively. Subsequently, the convicts have the power to resort to reviewing petitions under Article 137 as well. Now, until and unless, all the legal remedies have not been exhausted, the death warrants issued by the Sessions Court on 21st May 2015, were violative of Article 21.
Facts of the Case
Shabnam and Salim were declared as co-accused in the case of Murder of seven family members of Shabnam’s family on 14th April 2008 and 15th April 2008. The two were tried in the Sessions Court of Moradabad and were thus declared for a death sentence by the judgement dated 15th July 2010.
The Judgement of the Sessions Court was thereby subjected to the analysis of the Allahabad High Court for confirmation. The Allahabad High Court affirmed the death sentence through a judgement on 26th April 2013. The judgement was challenged on 15th May 2015 in the Supreme Court, but the pleas of the convicts were dismissed and thus, the death sentence was ordered.
On 21st May 2015, the Judges of the Sessions Court of Amroha issued a Death Warrant for the execution of the death sentence of the convicts. Therefore, the convicts filed writ petitions challenging the same. The first writ petition was filed by the first convict Shabnam while the second writ petition was filed by the National Law University, Delhi on behalf of the second convict Salim.
The writ petitions were filed stating that the issuance of death petitions was ‘impermissible’ since the convicts have legal remedies which are yet to be exercised. Furthermore, the issuance of death warrants without the exhaustion of the legal remedies violates Article 21 of the Indian Constitution guaranteeing the Right to Life and Personal Liberty with Dignity.
Issues raised before the Court of Law
- The appeal was raised before the Hon’ble Supreme Court of India whether the warrants issued by the Sessions Court of Ahmora for the death execution of the convicts was legitimate and permissible in nature.
- The appeal was raised before the Hon’ble Supreme Court of India as to what are the legal remedies available to the convicts before the execution of the death sentence.
- The appeal was raised before the Hon’ble Supreme Court of India as to what is the “established procedure of law” to be followed by the Court of Law to execute a Death Sentence.
Arguments from the side of the Respondent
- Ms. Pinky Anand learned Additional Solicitor General, appearing on behalf of the Union of India, put forward the instructions and guidelines issued by the Ministry of Home Affairs, Government of India, detailing about the established procedure for the convicts to apply for the mercy petitions. It was asserted that the due procedure has been taken into consideration for the implementation of the death sentence.
- It was further contended that through the guidelines that the Superintendent of Jail has certain duties in keeping the convicts updated in regards to the mercy petitions and the due procedure to be followed as stated in Paragraph II of the guidelines. The Superintendent of Jail was bound to inform the convicts and make them cognizant of the legal remedies available to them in view of the mercy petitions.
As per Paragraph II – “On receipt of the intimation of the dismissal by the Supreme Court of the appeal or the application for special leave to appeal to it lodged by or on behalf of the convict, in case the convict concerned has made no previous petition for mercy, the Jail Superintendent shall forthwith inform him (the convict) that if he desires to submit a petition for mercy it should be submitted in writing within seven days of the date of such intimation.”
- It was further stated that execution of the death warrants would not be implemented in a hasty and fanciful manner, rather would be duly exercised as per the instructions of the Ministry of Home Affairs, Government of India.
- The learned counsel Ms. Pragati Neekhra on behalf of the State of Uttar Pradesh asserted that after the issuance of the death warrants by the Sessions Judge on 21st May, 2015, they were received by the Superintendent of Jail for perusal. This fact substantiates that due procedure for the execution of the death warrants was being followed.
- Furthermore, it is contended that the Superintendent of Jail reverted back the death warrants to the Sessions Judge highlighting the absence of an exact date and time for the implementation of the death sentence, thereby making it a defective warrant in view of the absence of a date and time.
Arguments from the side of the Petitioner
- Mr. Anand Grover, the learned senior counsel appearing on behalf of the petitioners contended that merely following the guidelines of the Ministry of Home Affairs is not potentially satisfactory in availing all the legal remedies of the convicts.
- It was further asserted that guidelines issued by the Ministry of Home Affairs are applicable for filing for mercy petitions. However, in the present scenario, the convicts have not even reached the stage to file for mercy petition since the convicts have the right to file for review petition in view to review the judgement of 15th May, 2015. The appeals of convicts were thereby dismissed.
- The counsel also brought into light the judgement of the Division Bench of the Allahabad High Court in the case of People’s Union for Democratic Rights v. Union of India where the High Court stipulated the due procedure to be followed for the implementation of a death sentence. The said part of the judgement is stated as- “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 Section 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 legal assistance, legal aid must be provided.
These are essential procedural safeguards that must be observed if the right to life under
Article 21 is not to be denuded of its meaning and content.”
- It is further asserted that the issuance of the death warrants on 21st May, 2015, six days after the judgement of the convicts on 15th May, 2015 was arbitrary, unwarranted and absolutely unreasonable. It clearly defies the procedure of law providing the convicts to resort to legal remedies.
- The counsel for the petitioner further claims that the death warrants are absolutely non-adherence to the procedural law since the convicts have not completely exhausted their legal remedies before the execution of the death sentence. The appeals, though dismissed, were filed under Article 136. The constitution provides for Article 137 to file for review petition of the judgement for which a time period of 30 days is provided. Moreover, the sanctity of the review procedure was given the premiere importance as held in the case of Mohd. Arif v. Supreme Court of India. It emphasized the ‘reasonable procedure’ for review petition by the convicts.
- Additionally, it is claimed that all the administrative and constitutional remedies have not been exhausted by the convicts. The convicts can even apply mercy petitions to the President and the Governor of the State through Article 72 and 161 of the Constitution respectively. The decision of the authorities entirely depends on the analysis of the case and evidence and the power of the President or the Governor to grant remission. The pardon is granted as a symbol of humanity and mercy and an attempt for the convicts to reintegrate to the society without malice.
- The Counsel also pleads that as per the Article 21 of the Constitution the release of death warrants is violative in nature since the Article 21 clearly portulates the ‘due procedure of law.’ As per the procedure of law till the time for filing review partitions and after that the mercy petitions are not lapsed or terminated, the issuance of warrants is non-reasonable, arbitrary and against the ‘due established procedure of law’. Until all the legal remedies have not been exhausted, the Sessions Judge holds no power to issue the death warrants.
- Moreover, Article 21 also inhibits the Right to Dignity, therefore until all the legal remedies have been resorted and availed, the convicts are to be treated with a humane approach and the individual life holds premiere priority.
- Article 21 of the Indian Constitution- It states that “no person shall be deprived of his life or personal liberty except according to procedures established by law.”
- Article 136 of the Indian Constitution- “Special leave to appeal by the Supreme Court-
- (1) Notwithstanding anything in this Article, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India
- Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”
- Article 137 of the Indian Constitution- “Review of judgments or orders by the Supreme Court Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.”
- Article 72 of the Indian Constitution- “Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases
- (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence
- (a) in all cases where the punishment or sentence is by a court Martial;
- (b) in all cases where the punishment or sentence is for an offence against any law (c) relating to a matter to which the executive power of the Union extends;
- (d) in all cases where the sentence is a sentence of death
- Nothing in sub clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.”
- Article 161 of the Indian Constitution- “Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”
- Article 32 of the Indian Constitution- “Remedies for enforcement of rights conferred by this Part
- (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
- (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
- (3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ).
- (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”
- Section 413 of the Code of Criminal Procedure- “Execution of order passed under section 368. When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.”
- Section 414 of the Code of Criminal Procedure- “Execution of sentence of death passed by High Court. When a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.”
- Section 415 of the Code of Criminal Procedure- “ Postponement of execution sentence of death in case of appeal to Supreme Court.
- (1) Where a person is sentenced to death by the High Court and an appeal from its judgment lies to the Supreme Court under sub clause (a) or sub- clause (b) of clause (1) of article 134 of the Constitution. The High Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal has expired, or, if an appeal is preferred within that period, until such appeal is disposed of.
- (2) Where a sentence of death is passed or confirmed by the High Court, and the person sentenced makes an application to the High Court for the grant of a certificate under article 132 or under sub- clause (c) of clause (1) of article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until such application is disposed of by the High Court, or if a certificate is granted on such application, until the period allowed for preferring an appeal to the Supreme Court on such certificate has expired.
- (3) Where a sentence of death is passed or confirmed by the High Court, and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for the grant of special leave to appeal under article 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such period as it considers sufficient to enable him to present such petition.”
- Section 302 of the Indian Penal Code- “Punishment for murder.—Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.”
The two-judge bench of the Supreme Court of India held that the prisoners also have certain rights which cannot be sidelined on the basis of arbitrary and non-reasonable decisions which even defy the established procedure of law.
The death warrants and the implementation of the same cannot be exercised in light of the constitutional remedies guaranteed to the convicts. Until and unless all the administrative and legal remedies availed to the convicts have been exhausted, the lives of the convicts are to be meted out with a humane and dignified approach.
In the absence of the knowledge of the legal aid, the convicts are to be updated about the legal aids available to them to receive pardon and reintegrate into normal recourse of life. In case the convict is unable to afford or access legal aid, it is the duty of the administration to provide all means to the convict to afford the legal aid.
The Bench stated that the due procedure established under the landmark case of People’s Union for Democratic Rights v. Union of India is valid and is inclusive under the ambit of Article 21. The due procedure established under the case which must be adhered to before the death execution is as follows-
- “The principles of natural justice must be read into provisions of Sections 413 and 414 of the CrPC and sufficient notice ought to be given to the convict before the issuance of the warrant of death by the Sessions Court that would enable the convict to consult his advocates and to be represented in the proceedings.
- The death warrant must specify the exact date and time for the execution and not a range of dates which places the prisoner in a state of uncertainty.
- 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 the family before the date fixed for the execution.
- A copy of the execution warrant must be immediately supplied to the convict.
- In those cases, where a convict is not in a position to seek legal assistance, legal aid must be provided.”
Furthermore, the guidelines issued in the Shatrughan Chauhan v. The Union of India is to be given utmost importance in dealing with cases of death warrant. The guidelines were issued as the grounds for the implementation of the death sentence. “This quadruple test is:
(i) The act of execution should be as quick and simple as possible and free from anything that unnecessarily sharpens the poignancy of the prisoner’s apprehension.
(ii) The act of the execution should produce immediate unconsciousness passing quickly into death.
(iii) It should be decent.
(iv) It should not involve mutilation.”
The Supreme Court thereby quashed the death warrants as per the evidence they were issued in a hasty and arbitrary manner without a prudent judgement and importantly, the legal remedies of the convict were not exhausted. Therefore, the death warrants were invalid in nature.
It even asserted the Respondents to adhere to the due procedure established under People’s Union for Democratic Rights v. Union of India. The death sentence cannot be exercised if any the procedure laid in the said case is not duly abided. The Bench called this rule as ‘absolute’ and the writ petitions filed in the Supreme Court were hereby permitted.
The life of the convict cannot be jeopardized on grounds of unsound and dictatorial judgements. The issuance of the death warrants is valid when the convict has exhausted all the legal and administrative remedies provided by the constitution. The release of the death warrant even in case of availability of legal remedies is a clear violation of the Right to life of the convict.
The humane approach towards the prisoners would lead to prison reforms and the respect of their right to be heard holds utmost significance in upholding the motto of ‘innocent until proven guilty. The basic fundamental on which the exercise of the death sentence is based is that “The State should not punish with vengeance.”