IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) WP (Crl) No. 5 of 2014

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1 IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) WP (Crl) No. 5 of 2014 Holiram Bordoloi (In Jail) Presently lodged in the Death Cell at Special Prison, Nagaon, Assam. -Vs- 1. The Union of India Represented by the Secretary to the Ministry of Home Affairs, New Delhi. 2. The State of Assam represented by...petitioner The Home Secretary, Dispur, Guwahati,Assam. 3. The Inspector of Prisons, Assam, Guwahati. 4. The Superintendent of District Jail, Nagaon, Assam. 5. District Magistrate, Nagaon, Assam....Respondents. BEFORE HON BLE MR JUSTICE T. VAIPHEI, CHIEF JUSTICE (ACTING) THE HON BLE MR. JUSTICE C.R. SARMA For the petitioner : Mr. AK Bhattacharyya, Sr. Adv. Dr. YM Choudhury, Mr. KK Bhattacharyya, Mr. AK Choudhury, Mr. DK Bhattacharyya, Advocates For the respondents: Mr. SC Keyal, ASGI Ms. S. Jahan, Govt. Advocate Date of Hearing : Date of Judgment : WP(Crl.) No. 5 of 2014 Page 1 of 17

2 JUDGMENT AND ORDER (CAV) T.VAIPHEI,CHIEF JUSTICE (ACTING) In this writ petition, the petitioner is questioning the legality of the rejection of the mercy petition filed by him before the Governor of Assanm and President of India after keeping it in cold freeze for 9 years and 3 months. He is now facing execution of the death sentence imposed upon him by the learned Sessions Judge, Morigaon in Sessions Case No. 47(A) of 1999 as ultimately confirmed by the Apex Court in its judgment and order dated passed in Criminal Appeal No of He was convicted under U/s 147/148/436/326/302 read with Section 149 IPC. 2. Shorn of unnecessary details, the undisputed facts on record may be noticed at the outset. On the petitioner preferred a mercy petition to both the Governor of Assam and the President of India, which were forwarded to the concerned authorities by the Superintendent of Jail, Nagaon. It was, however, only on communicated to him through the letter dated that his mercy petition was rejected by the Governor of Assam. On , he was supplied with copy of the letter dated of the Ministry of Home Affairs, Government of India informing him that his mercy petition had been rejected by the President of India. It, therefore, took a period of 9 long years and 3 months for both the functionaries to reject his mercy petition. The grievance of the petitioner is that the inordinate delay in carrying out the death sentence and/or the inordinate delay in disposing of his mercy petition has compelled him to move this Court in this writ petition for converting his death sentence to life imprisonment as has been done by the Apex Court from time to time in the case of similarly situated convicts in the death row. 3. Unfolding his submissions, Mr. AK Bhattacharya, the learned senior counsel for the petitioner, contends that the petitioner and his family have been undergoing a living hell in the death row not knowing whether he would live or die or see another day ever since his death sentence was WP(Crl.) No. 5 of 2014 Page 2 of 17

3 confirmed by the Apex Court, while his mercy petition was pending before the Governor of Assam. According to the petitioner, due to such mental torture and pain, he developed kidney stones and coronary heart disease and has already suffered two heart attacks during his incarceration in the death row. The learned senior counsel maintains that the extraordinary and unjustified delay in deciding his mercy petition is entirely attributable to the Government of Assam, the Ministry of Home Affairs, the Office of the Raj Bhavan, Assam as well as the President of India, for which the petitioner cannot be faulted with in any manner; the callous attitude of these authorities and their grossly negligent act in sitting over his mercy petition for years and years altogether warrant commutation of his death sentence to one of life imprisonment. In fact, according to the learned senior counsel, the petitioner has fulfilled all the criteria laid down by the Apex Court in TV Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68 inasmuch as he never filed a review, curative of revision petition, and his mercy petition was filed immediately after his SLP was dismissed (ten days after the dismissal of the SLP). It is argued by the learned senior counsel that the execution of his death sentence after 11 years of his incarceration in the death row is violative of his fundamental rights guaranteed under Articles 14 and 21 of the Constitution: a procedure which deprives a convict of his life or personal liberty must be fair, just and reasonable and not fanciful. The learned senior counsel points out that the petitioner is not challenging, and, in fact and in law, cannot challenge the legality of his conviction and sentence, which has attained finality and this Court is equally under an obligation to refrain from examining the gravity of the offences committed by the petitioner. The learned senior counsel takes us to the various decisions of the Apex Court and High Courts such as Sher Singh and others v. State of Punjab, (1983) 2 SCC 344; Rajendra Prasad v. UP, (1979) 3 SCC 78; Smt. Triveniben v. state of Gujarat, (1989) 1 SCC 678; Jagdish v. State of MP, (2009) 9 SCC 495; TV Vatheeswaran (supra); Shatrugh Chauhan v. Union of India, (2014) 3 SCC 1; V. Sriharan v. Union of India, (2014) 4 SCC 242; Navjeet Kaur v. State of NCT of Delhi & another, Curative Petition (Criminal) No. 88 of 2013 (decided on March 31, WP(Crl.) No. 5 of 2014 Page 3 of 17

4 2014); K.P. Mohd. V. State of Kerala, 1984 Supp SCC 684; Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, (1985) 1 SCC 275; Madhu Mehta v. Union of India, (1989) 4 SCC 62, Shivaji Jaysingh Babar v. State of Maharashtra, (1991) 4 SCC 375; Daya Singh v. Union of India, (1991) 3 SCC 61, to fortify his submissions. Dr. YM Choudhury, the learned counsel for the petitioner, supplementing the arguments of the learned senior counsel, draws our attention to a number of decisions of the Apex Court and the High Courts, and contends that instances are legion where death sentences were quashed in most heinous crimes due to delay in disposal of mercy petitions for a period ranging from 2 to 14 years and where the gravity of the crimes was not considered and commuted the death sentence to life imprisonment. He, particularly, points out the following cases:- Munawar Haran Singh Shah v. State of Mahashtra, (1983) 3 SCC 354; K.P.Moammed (supra); Javed Abdul Hamid Pawala (supra); Triveniben (supra); Daya Sing (supra); Shivaji Singh Babar (supra); Madhu Mehta (supra); Jumman Khan v. State of UP, (1991) 1 SCC 752; Devendra Pal Singh Bhullar v. UOI, (2013) 6 SCC 253; Shatrughan Chauhan (supra); Suresh & another v. UOI, Writ petition (Crl) No. 132 of 2013, etc. where the Apex Court and various High Courts quashed death sentences and commuted them to life imprisonment and submits that as the petitioner is equally situated with the convicts in those cases, his death sentence should be set aside and commuted it to life imprisonment. 4. Refuting the submissions of the learned senior counsel for the petitioner, Mr. S.C. Keyal, the learned Assistant Solicitor General, refers to the counter-affidavit filed by the Union of India, and submits that judicial review of the decision of the President of India under Article 72 of the Constitution of India, is of a limited nature, and the particular facts and circumstances obtaining in this case do not warrant the interference of this case; entertaining this writ petition by this Court when the President of India has already rejected will amount to reopening of the case, which has attained finality. The learned ASG reminds this Court of the gravity of the offences committed by the convict, who, to settle personal score, along WP(Crl.) No. 5 of 2014 Page 4 of 17

5 with others forming a mob armed with dangerous weapons, tied the door of his own brother from outside, set the house of his brother on fire and burnt alive his two brother who were present inside the house, while his other brother was killed on the road assaulted with dao, lathi, jong, etc. by the mob and submits that his mercy petition was rightly rejected by the President. Maintaining that there is no inordinate delay in disposing of the mercy petition of the petitioner by the President of India, the learned ASG submits that the pendency of the mercy petition cannot, in any case, be said to be an act of cruelty or an act which adds to the suffering of the convict; in fact, the very pendency of mercy petition has given a new lease of life which would not have been possible had his mercy petition been promptly rejected. It is also contended by the learned ASG that this Court has to consider the settled law requiring examination of the gravity of the crime, the organized and systematic manner in which the crime was committed as well as the nature of the offence and its deleterious/deterrent effect not only against the victim but the society at large for such heinous crimes upon the society. It is pointed out by the ASG that the Union of India has filed a curative petition before the Apex Court against the judgment dated in the matter of Shatrughan Chauhan (supra), and the same is pending for adjudication by the Apex Court. The learned ASG refers us to the decisions of the Apex Court in MSM Sharma v. Sri Krishna Sinha, 959 Supp(1) SCR 806, State of W.B., (2010) 3 SCC 571; Delhi Administration v. Manohar Lal, (2002) 7 SCC 222; Sheri Singh v. State of Punjab, (1983) 2 SCC 344 and the order dated Mohd. Ashfaq v. Registrar, Supreme Court in Writ Petition (Criminal) No. 77 of 2014 to buttress his contentions. He, therefore, submits that this is not a fit case for the interference of this Court and that the writ petition is liable to be dismissed. 5. Ms. S. Jahan, the learned Government Advocate appearing for the State of Assam, while supporting the contentions of the learned ASG, refers to the counter affidavit filed by the State-respondents and admits that there was some delay in disposing of the mercy petition of the petitioner, but delay per se cannot be a ground for quashing the death WP(Crl.) No. 5 of 2014 Page 5 of 17

6 sentence which was rightly awarded keeping in mind the gravity of the offences as well as the diabolical behaviour and conduct of the petitioner. According to the learned Government Advocate, though the delay in disposing of the mercy petition appears to be unexplained, delay alone is not the conclusive factor to quash the death sentence and as held in Triveniben case (supra), delay is a factor which has to be seen in the light of subsequent circumstances, coupled with the nature of offence and circumstances in which the offence was committed, as already found by the competent court while passing the verdict. It is the contention of the learned Government Advocate that in the instant case, beyond delay, there is no subsequent circumstance showing any adverse effect on the convict on that count. She further contends that if delay is considered along with the dastardly and diabolical nature of the crimes committed by the convict, in the absence of any further supervening circumstances in favour of the petitioner, no case is made out for vacating the death sentence. She, therefore, lays strong emphasis on the fact that delay alone cannot be a ground for setting the death sentence aside and submits that there is absolutely no ground for vacating the death sentence. 6. In the instant case, one more undisputed fact may be recorded, namely, shortly after the petitioner submitted his mercy petition, the prison authorities filled in the nominal roll of the petitioner as required by the rules and forwarded copies of the same to the Union of India and the State of Assam. The nominal roll is signed by the Jailor, Nagaon Prison, the Superintendent, Nagaon Prison, the District Magistrate, Morigaon, the Officer-in-Charge of the Police Station and the Superintendent of Police, Morigaon. It is to be noted that the nominal roll, inter alia, requires an officer, not lower in rank than an Assistant Superintendent of Police to enquire into the general character of the concerned prisoner, and the said report has to be checked and countersigned by the District Magistrate and the sentence commuting authority. The relevant entry under this section in the nominal roll states as follows: The matter was locally enquired by the ASP Morigaon and submitted the previous history of the prisoner as under: As per the Gaoburha report and several other persons of villages WP(Crl.) No. 5 of 2014 Page 6 of 17

7 come to know that Holiram Bordoloi s/o Lt. Medhiram Bordoloi of village Gakhajua PS Mikirbheta who was facing death sentence for the offence which he committed was performing service at that time in the Army. His character and antecedents before the commission of the crime were satisfactory and he has no criminal background as such. It is also stated by the local people that the incident took place out of provocation made by the deceased. This nominal roll has not apparently been considered by the Governor or by President even though it pertains to an issue which is relevant to deciding the mercy petitions of the petitioner. It is not disputed that while waiting for the outcome of his mercy petition, the petitioner developed coronary heart disease and gall bladder stones, and also suffered two heart attacks in prison. In our considered view, the leading authority on the effect of delay in disposal of a mercy petition filed by a convict continues to be the decision of the Constitution Bench in Triveniben case (supra). This is what the Apex Court said in para 22 of the judgment: 22. It was contended that the delay in execution of the sentence will entitle a prisoner to approach this Court as his right under Article 21 is being infringed. It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra 12 and also in A.R. Antulay v. R.S. Nayak 13, the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or 12 (1966) 3 SCR 744: AIR 1967 SC 1 13 (1988) 2 SCC 602: 1988 SCC (Cri) 372 WP(Crl.) No. 5 of 2014 Page 7 of 17

8 to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also. 23. So far as our conclusions are concerned we had delivered our order on and we had reserved the reasons to be given later. Accordingly in the light of the discussions above our conclusion is as recorded in our order dated , reproduced below: Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to reopen the conclusions reached by the court while finally maintaining the sentence of death. This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the WP(Crl.) No. 5 of 2014 Page 8 of 17

9 decision in Vatheeswaran case 1 cannot be said to lay down the correct law and therefore to that extent stands overruled. 7. In Navneet Kaur v. State (NCT of Delhi), (2014) 7 SCC 264, a three-judge Bench of the Apex Court quoted with approval the following observations in Shatrughan Chauhan case (supra): 64. From the analysis of the arguments of both the counsel, we are of the view that only delay which could not have been avoided even if the matter was proceeded with a sense of urgency or was caused in essential preparations for execution of sentence may be the relevant factors under such petitions in Article 32. Considerations such as the gravity of the crime, extraordinary cruelty involved therein or some horrible consequences for society caused by the offence are not relevant after the Constitution Bench ruled in Bachan Singh v. State of Punjab 7 that the sentence of death can only be imposed in the rarest of rare cases. Meaning, of course, all death sentences imposed are impliedly the most heinous and barbaric and rarest of its kind. The legal effect of the extraordinary depravity of the offence exhausts itself when court sentences the person to death for that offence. Law does not prescribe an additional period of imprisonment in addition to the sentence of death for any such exceptional depravity involved in the offence. 65. As rightly pointed out by Mr Ram Jethmalani, it is open to the legislature in its wisdom to decide by enacting an appropriate law that a certain fixed period of imprisonment in addition to the sentence of death can be imposed in some welldefined cases but the result cannot be accomplished by a judicial decision alone. The unconstitutionality of this additional incarceration is itself inexorable and must not be treated as dispensable through a judicial decision. * * * 1 (1983) 2 SCC 68: 1983 SCC (Cri) 342: (1983) 2 SCR (1980) 2 SCC 684: 1980 SCC (Cri) 580 WP(Crl.) No. 5 of 2014 Page 9 of 17

10 72. In the light of the same, we are of the view that the ratio laid down in Devender Pal Singh Bhullar 4 is per incuriam. There is no dispute that in the same decision this Court has accepted the ratio enunciated in Triveniben 6 (Constitution Bench) and also noted some other judgments following the ratio laid down in those cases that unexplained long delay may be one of the grounds for commutation of sentence of death into life imprisonment. There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence. Each case requires consideration on its own facts. * * * 78. Taking guidance from the above principles and in the light of the ratio enunciated in Triveniben 6, we are of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases including the offences under TADA. The only aspect the courts have to satisfy is that the delay must be unreasonable and unexplained or inordinate at the hands of the executive. The argument of Mr Luthra, learned ASG that a distinction can be drawn between IPC and non-ipc offences since the nature of the offence is a relevant factor is liable to be rejected at the outset. In view of our conclusion, we are unable to share the views expressed in Devender Pal Singh Bhullar From the aforecited decision, two things become crystal clear, namely, Courts will examine only the circumstances surrounding the delay that has occurred and those that have ensued after the sentence was finally confirmed by the judicial process. Courts in such writ petition cannot reopen the conclusion already arrived at by the Supreme Court 4 (2013) 6 SCC 195: (2013) 4 SCC (Cri) (1988) 4 SCC 574: 1989 SCC (Cri) 25 4 (2013) 6 SCC 195 WP(Crl.) No. 5 of 2014 Page 10 of 17

11 while confirming the death sentence, but may consider the question of inordinate delay post such confirmation that delay unexplained, unreasonable and inordinate at the hands of the executive authorities, without anything more, can even be a relevant ground for quashing the death sentence. This, therefore, repels the contention of the learned Government Advocate that delay alone cannot be a ground to set aside the death sentence. It is also well-settled that there is a distinction between the consideration for examining mercy petition laid before the Governor or the President and the jurisdiction of this Court to examine the effect of the inordinate, unexplained and unreasonable delay in not disposing of the mercy petitions by the Governor and the President. While considering the mercy petition by the Governor or the President, the executive authorities are to be guided by the 7 point guidelines called Guidelines for Dealing with Mercy Petitions, which are issued by the Ministry of Home Affairs, Government of India, and the same are as follows: 1. Personality of the convict (such as age, sex or mental deficiency). 2. Has the appellate court expresses doubt on the reliability of evidence but has nevertheless decided on conviction? 3. Is it alleged that fresh evidence is obtainable, mainly with a view to seeing whether a fresh inquiry is justified? 4. Has the Court, on appeal, enhanced the sentence? 5. Is there any difference of opinion in the Bench of High Court Judges necessitating reference to a third Judge? 6. Was the evidence duly consideration in fixing responsibility, if it was a gang murder case? 7. Were there long delays in the investigation and the trial? 9. On the other hand, as already noticed, the jurisdiction of this Court to entertain a writ petition for quashing the death sentence on the ground of delay is limited only to consideration regarding the unreasonable, unexplained and inordinate delay in disposing of the mercy petition by the executive authorities and nothing more. It is against the backdrop of the aforesaid principles laid down by the Apex Court that we propose to examine the case of the petitioner for quashing the death sentence. As WP(Crl.) No. 5 of 2014 Page 11 of 17

12 indicated earlier, the point for consideration is whether the mercy petition of the petitioner was dealt with promptly or with inordinate, unreasonable and unexplained delay. It must be recalled that the death sentence was awarded upon the petitioner by the learned Sessions Judge, Morigaon on following his conviction and the same was confirmed by this Court on The Apex Court upheld his conviction and sentence on The mercy petitions of the petitioner under Articles 161 and 77 of the Constitution was filed before the Governor of Assam and the President of India respectively on i.e. 10 days after the dismissal of his appeal before the Apex Court, through the Superintendent of Jail, Nagaon, Assam. The Governor of Assam rejected the mercy petition of the petitioner on The mercy petition of the petitioner was forwarded by the Home (B) Department of the Government of Assam, to the respondent No. 1 along with copies of the judgments of the Court and decisions/orders of the Governor of Assam under Article 161 of the Constitution, and the same was received by the respondent No. 1 on with enclosure. On , the respondent No. 1 wrote to the State Government for providing additional information/documents of the case. On , the Government of Assam forwarded the additional information/documents, which were received by the respondent No. 1on After examination of the mercy petition by the Home Ministry, Government of India, the file pertaining to the mercy petition was forwarded to the President s Secretariat for the decision of the President of India. The mercy petition file with the decision of the President rejecting the petition was received by the Home Ministry on whereafter the decision of the President was communicated to the Home (B) Department, Government of Assam on The Home (B) Department of the Government of Assam on acknowledged the receipt of the letter of the Ministry of Home Affairs. Thus, there has been a delay of 9 years and 3 months from the date of submitting the mercy petitions by the petitioner to the Governor and the President. The explanation of delay offered by the State respondents is found at para 3(d) of their affidavit dated , which is as under: WP(Crl.) No. 5 of 2014 Page 12 of 17

13 d) That, the Home Department, Govt. of Assam issued letter of caution to the Departments and officials concerned due to whose negligence there was inordinate delay in disposing the mercy petition of the petitioner. 10. From the paragraph extracted above, it is obvious that the Staterespondents have admitted that there has been inordinate delay in disposing of the mercy petition of the petitioner. The law is now wellsettled that after completion of the judicial process, if a convict files a mercy petition to the Governor/President, it is incumbent on the functionaries to dispose of the same expeditiously. Though no time-limit can be fixed for the Governor and the President to exercise their power under Article 161 and Article 72 of the Constitution respectively, a duty is, nevertheless, cast upon them to expedite the decision-making process 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 contention of Ms. S. Jahan, the learned Additional Public Prosecutor, Assam, that even if there has been delay in disposing of the mercy petition, the matter should be remanded to the executive and a decision must not be taken on the judicial side, is completely answered by the Apex Court in the following terms in para 47 of Shatrughan Chauhan case (supra) in the following manner: 50. Another argument advanced by the learned ASG is that even if the delay caused seems to be undue, the matter must be referred back to the executive and a decision must not be taken in the judicial side. Though we appreciate the contention argued by the learned ASG, we are not inclined to accept the argument. The concept of supervening events emerged from the jurisprudence set out in Vatheeswaran 4 and Triveniben 23. The word judicial review is not even mentioned in these judgments and the death sentences 4 T.V. Vatheeswaran v. State of TN (1983) 2 SCC Triveniben v. State of Gujarat, (1989) 1 SCC 678 WP(Crl.) No. 5 of 2014 Page 13 of 17

14 have been commuted purely on the basis of supervening events such as delay. Under the ground of supervening events, when Article 21 is held to be violated, it is not a question of judicial review but of protection of fundamental rights and the courts give substantial relief not merely procedural protection. The question of violation of Article 21, its effects and the appropriate relief is the domain of this Court. There is no question of remanding the matter for consideration because this Court is the custodian and enforcer of fundamental rights and the final interpreter of the Constitution. Further, this Court is best equipped to adjudicate the content of those rights and their requirements in a particular fact situation. This Court has always granted relief for violation of fundamental rights and has never remanded the matter. For example, in cases of preventive detention, violation of free speech, externment, refusal of passport, etc. the impugned action is quashed, declared illegal and violative of Article 21, but never remanded. It would not be appropriate to say at this point that this Court should not give relief for the violation of Article Thus, on the indisputable facts on record, in our judgment, we have no hesitation to hold that the period of 9 years and 3 months taken by the Governor and the President in disposing of the mercy petition of the petitioner cannot, by any stretch of imagination, be considered to be a reasonable exercise of discretion by the two constitutional functionaries. It may be noted that the mercy petition of the petitioner was forwarded by the Inspector General of Prisons, Assam on to both the Governor and the President of India, both of them jointly took 9 years and three months to reject the mercy petition. In our judgment, there is thus unexplained, unreasonable and inordinate delay in delay in disposing of the mercy petition of the petitioner. Moreover, we cannot lose sight of the undisputed facts on record that the relevant entry under this section in the nominal roll states as follows: The matter was locally enquired by the ASP Morigaon and submitted the previous history of the prisoner as under: As per the Gaonburha report and several other persons of villages WP(Crl.) No. 5 of 2014 Page 14 of 17

15 come to know that Holiram Bordoloi s/o Lt. Medhiram Bordoloi of village Gakhajua PS Mikirbheta who was facing death sentence for the offence which he committed was performing service at that time in the Army. His character and antecedents before the commission of the crime were satisfactory and he has no criminal background as such. It is also stated by the local people that the incident took place out of provocation made by the deceased. This nominal roll has not apparently been considered by the Governor or by President even though it pertains to an issue which is relevant to deciding the mercy petitions of the petitioner. It is not disputed that while waiting for the outcome of his mercy petition, the petitioner developed coronary heart disease and gall bladder stones, and also suffered two heart attacks in prison. The Apex Court has consistently held that prolonged delay in execution of death sentence, by itself, gives rise to mental suffering and agony and health problems which render the subsequent execution of death sentence inhuman and barbaric. In this context, we cannot but quote the following observations of the Apex Court in paras 38, 45 and 49 of the judgment in Shatrughan Chauhan case (supra): 38. This is not the first time when the question of such a nature is raised before this Court. In Ediga Anamma v. State of A.P. 8 Krishna Iyer, J. spoke of the brooding horror of hanging which has been haunting the prisoner in the condemned cell for years. Chinnappa Reddy, J. in Vatheeswaran 7 said that prolonged delay in execution of a sentence of death had a dehumanising effect and this had the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the fundamental right under Article 21 of the Constitution. Chinnappa Reddy, J. quoted the Privy Council s observation 9 in a case of such an inordinate delay in execution viz.: [(Vatheeswaran case] (supra), SCC p. 72, para 10) 8 (1974) 4 SCC T.V. Vatheeswaran v. State of TN, (1983) 2 SCC 68 9 Riley v. Attorney General of Jamaica, (1983) 1 AC 719 WP(Crl.) No. 5 of 2014 Page 15 of 17

16 10. 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 [has to be seen]. (Riley case 9 AC p. 735C) (emphasis supplied) Thereby, a Bench of two Judges of this Court held that the delay of two years in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to plead for commutation of sentence of death to imprisonment for life. * * * 45. Keeping a convict in suspense while consideration of his mercy petition by the President for many years is certainly an agony for him/her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death. Indisputably, this Court, while considering the rejection of the clemency petition by the President, under Article 32 read with Article 21 of the Constitution, cannot excuse the agonising delay caused to the convict only on the basis of the gravity of the crime. * * * 49. The procedure prescribed by law, which deprives a person of his life and liberty must be just, fair and reasonable and such procedure mandates humane conditions of detention preventive or punitive. In this line, although the petitioners were sentenced to death based on the procedure established by law, the inexplicable delay on account of executive is inexcusable. Since it is well established that Article 21 of the Constitution does not end with the pronouncement of sentence but extends to the stage of execution of that sentence, as already asserted, prolonged delay in execution of sentence of death has a dehumanising effect on the accused. Delay caused by circumstances beyond the prisoners control mandates commutation of death sentence. In fact, in Vatheeswaran (supra), particularly, in para 10, it was elaborated where amongst other WP(Crl.) No. 5 of 2014 Page 16 of 17

17 authorities, the minority view of Lords Scarman and Brightman in the 1982 Privy Council case of Riley v. Attorney General of Jamaica (supra), by quoting: [Vatheeswaran case (supra)]) 10. Sentence of death is one thing: sentence of death followed by lengthy imprisonment prior to execution is another. [(Riley case (supra)] (emphasis supplied) The appropriate relief in cases where the execution of death sentence is delayed, the Court held, is to vacate the sentence of death. In para 13, the Court made it clear that Articles 14, 19 and 21 supplement one another and the right which was spelled out from the Constitution was a substantive right of the convict and not merely a matter of procedure established by law. This was the consequence of the judgment in Maneka Gandhi v. Union of India 31 which made the content of Article 21 substantive as distinguished from merely procedural. (Underlined for emphasis) 12. For the reasons stated in the foregoing, this writ petition succeeds. We hereby commute the death sentence of the petitioner (Holi Ram Bordoloi) into imprisonment for life which means till the end of his life, subject to any remission granted by the State Government U/s 432, CrPC, which, in turn, is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the code. JUDGE CHIEF JUSTICE (ACTING) Alam/Upadhaya 31 (1978) 1 SCC 248 WP(Crl.) No. 5 of 2014 Page 17 of 17