Holding

A delay exceeding two years in the execution of a death sentence renders the procedure violative of Article 21, necessitating commutation of the death sentence to life imprisonment.

Summary

T.V. Vatheeswaran, convicted of multiple murders and sentenced to death in January 1975, remained in solitary confinement for eight years, including two years as a prisoner on remand. He challenged the death sentence on the ground that the prolonged delay in execution, coupled with illegal solitary confinement, violated his fundamental right to life and liberty under Article 21 of the Constitution. The Supreme Court examined precedents on the dehumanising effect of delayed executions and held that a delay exceeding two years makes the execution procedure unfair, unreasonable and inhuman, thereby infringing Article 21. The Court further affirmed that the right to a speedy trial and humane conditions of detention are implicit components of a fair procedure. Consequently, the Court allowed the Special Leave Petition, quashed the death sentence and substituted life imprisonment. The decision underscored that prolonged delay in carrying out a death sentence cannot be justified irrespective of the cause of the delay.

Issues considered

Whether a delay of more than two years in executing a death sentence violates Article 21 of the Constitution.
Whether solitary confinement for an extended period constitutes a violation of the right to life and liberty under Article 21.
Whether a condemned prisoner can invoke fundamental rights to challenge the death sentence.
Whether the procedural requirements of a fair, just and reasonable process under Article 21 encompass the manner of carrying out a death sentence.

Legislation cited

Constitution of Indias. Art. 14, s. Art. 161, s. Art. 19, s. Art. 21, s. Art. 72

Subjects

Article 21death penaltydelay in executionsolitary confinementfundamental rightscommutationspeedy trialhuman rightsconstitutional lawIndia

Judgment

348
A
T. V. VATHEESWARAN
v.
STATE OF TAMIL NADU
B
February 16, 1983

(0. CHINNAPPA REDDY AND R.B. MISRA, JJ.]

Constitution of India-Art. 21-Pr/soner sentenced to death-Detention
c awaiting execution-Detention exceeding two years violative of guarantee of fair
p'rocedure under Art. 21.

The appellant was sentenced to death in January, 1975 on a charge of
committing wicked and diabolic murders and ·since then he was in -solitary
confinement. Before conviction, he had been a 'prisoner under remand' for
two years.

D The appellant's contention was that to take away his life after keeping him
in jail for ten years, eight of which in illegal solitary confinement, woukl be
violative of Art. 21. •
Allowing the appeal and converting the sentence of death to one of
imprisonment for life,
E
HELD : 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 ia an unjust, unfair and unreasonable way so as to offend the constitu-
tional guarantee that no person shall be deprived of his life or personal Hberty )
except according to procedure established by law. Making all reasonable
allowance for the time necessary for appeal and consideration of reprieve, a
F 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
Art. 21 and demand the quashing of the sentence of death. [359 G-H, 360 D·B]

(i) A conviiJt is entitled to the precious right guaranteed in Art. 21. The
right to a speedy trial 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 this Article.
G [357 D, 3S7 G·H, 358 A]

Bhuvan Mohan Patnalk v. State of A. P., [1975] 2 S.C.R. 24; Suni/ Batra v.
Delhi Administration, [1979] 1 S.C.R. 392; State of Maharashtra v. Prabhakar
Pandurang Sangzgiri & Anr., [1966] I S.C.R. 702; State of Maharashtra v.
Champa/al, A.LR. [1981] S.C. 1675; Hussainara Khatoon (I) v. Home Secretary,
H [1980] 1 S.C.C. 81 and Hussainara Khatoon (IV) v. Home Secretary, (1980] I
$.C.C. 98 referred to.
T,V. VATHBBSWARAN V. TAMIL NADU 349
(ii) The fiat of Art. 21 is that any procedure which deprives a person of A
his life or liberty must be just,1 fair and ,.reasonable. It implies humane condi-
tions of detention, preventive or punitive. 'Procedure established by law' does
not end with the pronouncement of sentence; it includes the carrying out of
sentence. 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. [359 D-E, 359 G-H, 360 A]
B
v.
Maneka Gandhi v. Union of India, (1978] 2 S.C.R. 621, Sunil Batra Delhi
Administration, (1979] 1 S.C.R. 392 and Bachan Singh v. State of Punjab, A.i.R.
[1980] S.C. 898 referred to.

(iii) Sentence of death is one thing; sentence of death followed by lengthy
imprisonment prior to execution is another. A period of anguish and suffering
is an_ inevitable consequence of sentence of death, but a prolongation of it beyond c
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
with its anguish of alternating hope and despair, the agony of uncertainty and
the consequences of such suffering on the mental, emotional and physical inte--
grity and health of the individual. Where, after the sentence of death is given,
the accused is made to undergo inhuman and degrading punishment or where D
the execution of ~he sentence is endlessly delayed and the accused is made to
suffer the most excruciating agony and anguish, it is 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. [352 E·G, 350 F, 360 E]

Noel Riley & Ors. v. The Attorney General & Anr., [1982] Cr!. Law R eview E
679; Piaradusadh v. Emperor, A.I.R. 1944 F.C. 1; Ediga Annamma v. State of
Andhra Pradesh, [1974] 3 S.C.R. 329; State of U.P. v. Lalla Singh, A.I.R. [1978]
S.C 368; Bhagwan Baux Singh v. State of U.P., A.I.R. [1978] S.C. 34; Sadhu
Singh v. StateofU.P., A.LR. [1978] S.C.1506; State of U.P. v. Sahai, A.I.R.
[1981] S.C. 1442 and Furman v. State of Georg/a, 408 U.S. 238, referred to.

F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 75 of
1983.

Appeal by Special leave from the Judgment and Order dated
the 20th December, 1976 of the Madras High Court in Criminal
Appeal No. 182 of 1975 and Referred Trial No. II of 1975. G

R.K. Garg and R. Satish for the Appellant/Petitioner.

A. V. Rangam for the Respondent.
H
The Order of the Court was delivered b!
350 SUPREME COURT REPORTS (1983] 2 S.C.R

A 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·villian 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,
8 abduct them on the pretext of interrogating them, administer sleep-
ing 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 deatil. But tilat was
in January 1975. Since then he has been kept in solitary confine-
c ment, quite contrary to our ruling i.n Sunil Batra v. Delhi Administra-
tion('). 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 ten years, eight of which in illegal solitary confinement, is
a gross violation o the Fundamental Right guaranteed by Art. 21
of the Constitution. Let us examine his claim. First let us get rid ...
D of the cobwebs of prejudic:e Sure, the murders were wicked and
diabolic. The appellant and his friends showed no mercy to their
victims. Why should any mercy he 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 circums-
tances 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 under·
go inhuman and degrading punishment or where the e<ecution 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 exerc~ising writ jurisdiction, in an appropriate
proceeding, to take note of the circumstance when it is brought to
its notice and give relief where necessary?

Before adverting to the constitutional implications of prolong-
ed delay in the execution of a sentence of death, let us refer to the
G judicial attitu:le towards such delay in lnJ•a and elsewhere.

ln Piaradusadh v. Emperor('), the Federal Court of India took
into consideration the circumstance that the appellant had been

H
(!) [1979] 1 S.C.R. 392.
(2) A.I,R. 1944 FC 1,
T.V. VATHEESWARAN v. TAMIL NADU (Chinnappa Reddy, J.) 351

awaiting the execution of the death sentence for over a year to alter
the sentence to one of transportation for life.
• >

In Ediga Annamma v. State af Andhra Pradesh('), Krishna
Iyer and Sarkaria, JJ observed that "the 'brooding horror of hanging'
which has been baµnting the prisoner in her condemned cell for
over two years" bad an "ameliorative impact" and was "a factor of B
humane sig.nificance in the sentencing context".

In State of U.P. v. Lalla Singh(') Gupta and Kailasam, JJ,
. -l 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 c
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.

In Bhagwan Baux Singh v. State of U.P.( 3), the sentence of
death was commuted to imprisonment for life by Murtaza Fazal Ali D
and Kailasam, JJ, having patticular regard to the fact that the
sentence 0f death had been imposed more than two. and a half
years ago.

In Sadhu Singh v. State of U.P.('), Sarkaria, Sen, JJ, and one
of us (Cbinnappa Reddy, J1 took into account the circumstance that E
the appellant was under spectre of the sentence of death for over
three years and seven m~nths to alter the sentence of death to one
of imprisonment for life.

In State ofU.P. v. Sahai('), Murtaza Fazal Ali, Baharul Islam F
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.

In Furman v. State of Georgia('), Justice Brennan observed, G
"The prospect of pending execution exacts a frightful toll during the

(!) [1974] 3 S.C.R. 329,
(2) A.LR. 1978 S.C. 368.
(3) A.l.R. 1978 S.C, 34
(4) AJ.R. 1978 S.C. 1506. H
(5) A.I.R. 1981 S.<;:, 1442,
(6) 408 us 238,
352 SUPREME COURT REPORTS (1983) 2 s.c . l

inevitable long wait between the imposition of sentence and the
actual infliction of death".
< -
In Noel Riley and Ors. v. The Attorney General and Another(')
the majority of the Lords of the Judicial Committee of the Privy
Council expressed no opinion on the question whether the delayed
B 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, People v. Chessman,
People v. Anderson, Ediga Anamma v. State of Andhra Pradesh,
Rajendra Prasad v. State ofU.P. and Tyrer v. United Kingdom, said:
c
"It is no exaggeration, therefore, to say that the juris-
prudence of the civilised world, much of which is derived
from common law principles and the prohibition against
cruel and unusual punishment in the English Bill of Rights,
has recognised and acknowledged that prolonged •
D
delay in executing a se,ntence of death can make the punish-
·ment "when it comes inhuman and degrading. As the
Supreme Court of California commented in Anderson's
case (supra), it is crnel and bes dehumanising effects.
Sentence of death is one thing : sentence of death followed
E by lengthy imprisonment prior to execution is another.

"It is of course true that a period of anguish and suffer-
ing 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
l
F to say that the man will struggle to stay alive. ·rn truth, it
is this ineradicable human desire which makes prolonga-
tion inhuman and degrading. The anguish of alternating
hope and despair, the agony of uncertainty, the conse-
quences of such suffering o.n the mental, emotional, and
physical integrity and health of the individual are vividly
G 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 ............................ ..

(!) 1982 Cr!. Law Review 6'19,
T.v. VATHBBSWARAN v. TAMIL NADU (Chinnappa Reddy, J.) 353

"Prolonged delay when it arises from factors outside A
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 constitu-
tional 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 B
in the circumstances which had arisen inhuman or degrad-
ing. Such a case has been established, in our view, by these
appellants."

While. we entirely agree with Lord Scarman and Lord
Brightman about the dehumanising effect of prolonged delay after
c
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
D
dehumanising character of the delay.

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 Art. 2t of the Constitution, for, it is to that
,. article that we must first look for protection whenever life or liberty E
is threatened. Art. 2l says: "No person shall be deprived of his
life or personal liberty except according to procedure established by
law." The dimensions of Art. 21 which at one time appeared to be
i constricted by A.K. Gopalan v. State of Madras(') have been truly
expanded by Maneka.Gandhi v. Union of India(2) and Sunil Batra etc.
v. Delhi Administration.(') F

In Maneka Gandhi v. Union of India('), it wa~ held that the
various articles of the Constitution in Chapter Ill (Fundamental
Rights) were not several, isolated walled fo(!resses, each not reacting
on the other, but, on the other hand, were parts of a great scheme
to secure certain ba~ic rights to the citizens of the country, each
G
article designed t<;> expand but never to curtail the content of the
right secured by the other article. No article was 11 complete code in

(I) (1950] S.C.R. 88.
H
C2) [1918] 2 S.C.R. 621.
(3) (1979] I S C.R.:392"
354 SUPREME COURT REPORTS [1983J 2 s.c.R.

A, itself and several of the Fundamental Rights guaranteed by Chapter
III of the Constitution overlapped each other. So, a law satisfying
the requirements of Art. 21 would still have to meet the challenge of "
Art. 14 and Art. 19 of the Constitution. In regard to Art. 21 itself,
it was held that the procedure contemplated by the article bad to
be fair, just and reasonable, and not some semblance of procedure,
B fanciful, oppressive or arbitrary. Chandrachud. J, (as be then was)
said :

"But the mere prescription of some kind of procedure
cannot ever meet the mandate of Art. 21. The procedure >-
prescribed by law has to be fair, just and reasonable, not
C fanciful, oppressive or arbitrary." •

Cban"drachud, J. expressed his total agreement with Bhagwati, J's
following observations :

"The law must, therefore, now be taken to be well ..
D 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
'E challenge of that article.',

Bbagwati, J. further observed :

"But apart altogether from these observations in A.K. l
Gopa/an's case, which have great weight, we find that even
F on principle the concept of reasonableness must be projected
in the procedure contemplated by Art. 21, having regard to
the impact of Art. 14 on Art. 21."

Again be said :
c· "The principle of reasonableness, which legally as well
as philosophically, is an essential element of equality
or non-arbitrariness pervades Art. 14 like a brooding omni-
presence and the procedure contemplated by Art. 21 must
H answer the test of reasonableness in order to be in confor·
mity with Art. 14. It must be "right and just and fair" and
not arbitrary, fancift1l CJf oppressive; ~therwise, it would be;
T.V. VATHEESWARAN >.TAMIL NADU (Chinnappa Reddy, J) 3SS
. no procedure. at all and the requiremeot of Art. 21 would A
not be satisfied."

In Sunil Batra v. Delhi Administratian('), Krishna Iyer, J. while
dealing with the question whether solitary confinement could be
inflicted on a person.awaiting death sentence, observed:·
B
"True our Constitution bas no 'due process' clause or
the VIII Amendment; but, in this branch of law, after
Cooper and Maoeka Gandhi, th~ consequence is the same.
For what is punitively outrageous, scaodalizingly unusual
or cruel and rehabilitatively counter-productive, is unargu-
ably unreasonable and arbitrary and is shot d~wn by
c
Arts. 14 and 19 and if inflicted with procedural unfairness,
falls foul of Art. 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
D
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 (Art. 19) become chimerical constitutional
claptrap."

, In the same case, Desai, J. said :
!
"The word "law" in the expression "procedure
·established by law" in Art. 21 has been interpreted to mean F
in Maneka. Gandhi's case (supra) 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 require-
ment of Art. 21 would not be satisfied. If it is arbitrary it
would be viOlative of Art. 14." '
G
• In Bachan Singh v. State of Punjab(') Sarkaria, J. summarised
the effect of Maneka Gandhi in th'ese words :

H
(1) (1979] 1 S.C.R. 392.
(2) [1983] I S.C.R. 14S=A.I.R. 1912 S.C. 1325=[1982] 2 S.CC. 684.
356 SUPREME CC>UR1 ltEPOllTS (1983] 2 s.c.a.

A "In Maneka Gandhi's case, 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 Art. 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
B status of distinct fundamental rights under Art. 19. It was
further observed that Arts. 14, 19 and 21 are not to be
interpreted in water· tight compartments, and consequently,
a law depriving a person of personal liberty and prescribing
a procedure for that purpose within the meaning of Art. 21
bas to stand the test of one or more of the fundamental
c rights conferred under Art. 19 which may be applicable in
a giv~n situation, ex-hypothesi it must also be liable to be
tested with reference to Art. 14. The principle of reasona-
bleness pervades all the three articles, with the result, that
the procedure contemplated by Art. 21 must be 'right and
D just and fair' and not 'arbitrary, fanciful or oppressive'
otherwise it should be no procedure at all and the require-
ment of Art. 21 would not be satisfied".

The learned judge then referred to Art. 21 and said,

"If this article is expanded in accordance with the
interpretative principle indicated in Maneka Gandhi, it
will read as follows :
1
"No person shall be deprived of his life or personal
liberty except according to fair, just and reasonable pro-
F cedure established by valid law". In the converse positive
form, the expanded Article will read as below :

"A person may Joe deprived of his life or personal
liberty in accordance with fair, just and reasonable proce-
dure established by valid .law".
G
•
"Thus expanded and tead for interpretative purposes,
Art. 21 clearly brings out the implication, that the Found-
ing Fathers recognised the right of the State to deprive a
H person of his life or personal liberty in accordance with
fair, just and reasonable procedure established by valid
law". "
T.V. VATHEESWARAN v. TAMIL NADU (Chinnappa Reddy, J.) 351
The question whether a prisoner under a lawful sentence of A
.. death or imprisonment could claim Fundamental Rights was consi-
dered in Bhuvan Mohan Patnaik v. State of A.P.(1). Cb.andrachud, J.
(as he then was) declared :

"Convicts are not, by mere reason of the conviction.
denuded of all the Fundamental Rights which they other- B
wise possess. A compulsion under the authority of law,
following upon a conviction, to live in a prison house
entails to by its own force the deprivation of fundamental
freedoms like the right to move freely throughout the
territory of India or the right io "practise" a profession. A
man of profession would thus stand stripped of his right to c
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
D
Article 21 of the Constitution that he shall not be deprived
of his life or personal libert)( except according to procedure
established by law".

The declaration of Chadrachud, J. in Bhuvan Mohan Patniak's
case was quoted with approval and accepted by the Constitution
Bench in Sunil Batra v. Administration (supra). E

We may also refer here to State of Maharashtra v. Prabhakar
Pandurang Sangzgiri and Anr'(') 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 :
F

"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".

The Court has also recognised that the right to life and liberty G
guaranteed by Art. 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

H
m 1197512 s.c.R. 24.
(2) [1966] 1 S.C.R. 702.
358 SUPREME COURT REPORTS (1983] 2 S.C.R.

.A right to a fair trial which has been held to be part of the right to
life. and liberty guaranteed by Art.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 in Slate of Maharashtra 'v.
Champala/( 1) : '
B
"Such situations, in appropriate cases, we may readily
infer an infringement of the right to life and liberty guaran-
teed by Art. 21 of the Constitution. Denial of a speedy
trial may with or without proof of something more Jead to
an inevitable inference of prejudice and denial of justice.
c 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 (/) v. Home Secretary('), ·it was
D observed by Bbagwati. J. :

"If a person is deprived of bis liberty under a proce-
dure which is not "reasonable, fair or just", such depriva-
tion would be vjolative of bis fundamental right under
Art. 21 and he would bi: entitled to enforce such funda-
E mental right and secure bis 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,
F
fair or just' and it would fall foul of Art. 21. There can,
therefore, be no doubt that speedy trial, ancl by speedy trial
we mean reasonably expeditious trial, is an integral and
essential part of the fundamental right to life and liberty
enshrined in Art. 21."
G
In Hussainara Khatoon (JV) v. Home Secretary('), the principle
was re-affirmed and Bbagwati, J. added :

·•Speedy trial is, as .held by us in our earlier judgment
dated February 26, 1979, an essential ingredient of 'reason- .-
H (l) A.I.R. 1981 S.C. 1615.
(2) .[1980] I s.c.c. 81.
(3) [1980] 1 s.c.c. 98.
T.V. VATHEESWARAN V. TAMiL NADU (Chinnappa Reddy, J.) 359
able, fair and just' procedure guaranteed by Art. 21 and
it is the constitutional obligation of the State to devise such
a procedure as would ensure speedy trial to the 11ccused."

Inthe same case, it was further observed that the right to free legal
services was implicit in Art. 21 as no procedure could be said to be
reasonable, fair and just which did not provide for legal service to B
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 Maharashtra('):

So, what do we have now? Arts. 14, 19 and 21 are not mutually
c
· 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 a\so
claim Fundamental Rights. The fiat of Art. 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. ho.Id
that prolonged detention to await the execution of a sentence of
death is an unjust, unfai.r and unreasonable procedure and the only
I
l way to undo the wrong is to quash the sentence of death. In · the
United States of America where the right to a ~peedy trial is a cons-
titutionally guaranteed right, the denial of a speedy trial has been
held to entitle an accused perrnn to the dismissal of the indictment F
or the vacation of the sentence (vide Strunk v. United States('):
Analogy of American Law is not permissible, but interpreting our
Constitution sui generis, as we are bound to do, we find no impedi-
ment in holding tbat the dehumanising factor of prolonged delay in
the execution of a sentence of death bas the constitutional implica- G
tion of depriving a person of bis 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

B
(1)-{1978] 3 s.c.c. 544,
(2) [1973] 37 L.Ed. 2d 56.
~60 SUPREME OOURT REPORTS (1983) 2 S.C.k.

A according to procedure established by law. The appropriate relief in
such a case is t" vacate the sentence of death.

What may be .considered prolonged delay so as to attract the
constitutional protection of Art. 21 against the execution of a
sentence of death is a ticklish question. In Ediga Annamma's case,
B two years was considered sufficient to justify interference with the
sentence of death. In Bhagwan Baux' s case, two and a half years
and in Sadhu Singh' s case, three and a half years were taken as
sufficient to justify altering the sentence of death into one of impri·
sonment for life. The Code of Criminal Procedure provides that a
·sentence of death imposed by a court of Session must be confirmed
c by the High Court. The practice, to our knowledge, has always been
to give top priority to the hearing of such case~ by the High Courts.
So, also in this Court. There are provisions in the Constitution
(Arts. 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
•.
D and consideration of repriev•e, 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
Art. 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
E the sentence of death, we substitute the sentence of imprisonment
for life.

H.L.C. Appeal allowed.