B. A. UMESH versus UNION OF INDIA & ORS. on 4 November 2022

[2022] 8 S.C.R. 628

SUPREME COURT REPORTS

[2022] 8 S.C.R.

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B. A. UMESH

v.

UNION OF INDIA & ORS.

(CRIMINAL APPEAL NO.1892 OF 2022)

BNOVEMBER 04, 2022

[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT ANDPAMIDIGHANTAM SRI NARASIMHA, JJ.]

Sentence/Sentencing : Death Sentence – Commutation of –Award of death sentence in a rape and murder case – CommutationCsought on the grounds of delay in disposal of mercy petition andsolitary confinement from the date of conviction order till the disposalof mercy petition – Held: Undue long delay in execution of deathsentence would entitle the condemned prisoner to pray forcommuting the death sentence to that of life imprisonment – OnDfacts, the alleged period is of two years and three months, startingfrom the receipt of the mercy petition by the Central Government tillthe disposal – Mercy petition was disposed on two levels i.e.,Governor and the President during the said period – Time taken bythe authorities and the functionaries cannot be termed as “inordinatedelay” – Thus, it cannot be said that there was delay in decidingEthe mercy petition – As regards solitary confinement, segregation ofa convict from the day when he was awarded death sentence till hismercy petition was disposed of, would be in violation of law laiddown in Sunil Batra’s case – On facts, incarceration of the accusedin solitary confinement and segregation from 2006 to 2013 wasFwithout the sanction of law and completely opposed to the principleslaid down by this Court –Period of solitary confinement is for about10 years – Letter by the medical professional show ill effects on thewell-being of the accused due to incarceration in solitaryconfinement – Thus, to meet the ends of justice, the death sentencecommuted to life imprisonment for minimum 30 years.G

Allowing the appeal, the Court

HELD: 1.1 Undue long delay in execution of death sentencewould entitle the condemned prisoner to pray for commuting thedeath sentence to that of life imprisonment. The alleged periodHin the instant matter is of two years and three months i.e., starting from the receipt of the mercy petition on 3.3.2011 by the CentralGovernment till the disposal on 15.5.2013. It must be stated thatsoon after the receipt of the said mercy petition, the Ministry ofHome Affairs, Government of India forwarded the mercy petitionto the Principal Secretary, Home Department, Karnataka so thatthe Governor, Karnataka could consider the mercy petition first.In the meantime, on 9.3.2011 in Writ Petition No.52 of 2011preferred by the appellant, this Court had granted stay ofexecution of death sentence. The matter was considered by theState Cabinet on 7.5.2012 which decided to approve the noteprepared by the Home Department recommending rejection ofthe mercy petition. The matter was then placed before the Hon’bleGovernor who rejected the mercy petition on 06.06.2012. Thecopy of the order passed by the Hon’ble Governor and relevantdocuments were forwarded by the State Government to theCentral Government on 30.08.2012. On 18.09.2012, certaininformation was sought by the Central Government from the StateGovernment which was furnished to the Central Government on26.12.2012. The matter was thereafter taken up at the CentralGovernment level. The Ministry of Home Affairs prepared anappropriate note for the Hon’ble President who after consideringthe entirety of the matter rejected the mercy petition on12.05.2013. [Para 14, 15][652-D-H; 653-A-B]

1.2 The entire period beginning from 03.03.2011 to15.05.2013 spanning over a period of 2 years and 3 months sawdisposal of mercy petition at two different levels, one, by theHon’ble Governor and other by the Hon’ble President. All thewhile, there was an order of stay granted by this Court on 19.3.2011which was operating all through. First and foremost, the timetaken by each of these authorities and the functionaries assistingthem cannot be called or termed as “inordinate delay” andsecondly, it was not as if every passing day was adding to theagony of appellant. The order of stay of execution had put thematter in a different perspective. In the given facts andcircumstances of the case, the first submission cannot beaccepted. [Para 16, 17][653-C-E]

2.1 As regards solitary confinement, the letter written byMedical Officer, Belgaum Central Prison on 6.11.2011 did say ABC

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Athat the appellant was kept in solitary confinement and said letterhas been heavily relied upon by the appellant in support of thesecond submission. According to the letter, the appellant waskept in solitary confinement since his admission to the prison inOctober, 2006 and that apart from common illness such asdiarrhoea, fever, running nose and backache, the appellant wasBfound to be suffering from psychosis with depression. This letteralso affirms the fact that the appellant was mentally ill. [Para 19][654-C-D-F]

2.2 The act on part of the medical officer in checking thehealth and well-being of the appellant was obviously because ofCthe mandate of Section 29 of the Prisons Act, 1894. It must betaken to be accepted that from 2006 till 2016, the appellant waskept in solitary confinement in “Andheri Block” and it was onlythereafter, some relaxation in the rigours of the solitaryconfinement was effected and as the record shows, from 2016Donwards the conditions were gradually relaxed. [Para 20][654-G-H; 655-A-B]

2.3 Segregation of a convict from the day when he wasawarded death sentence till his mercy petition was disposed of,would be in violation of law laid down by this Court in Sunil Batra’sEcase. In the instant case, the death sentence was awarded to theappellant in 2006 by the trial court and the mercy petition wasfinally disposed of by the Hon’ble President on 12.5.2013, whichmeans that the incarceration of the appellant in solitaryconfinement and segregation from 2006 to 2013 was without thesanction of law and completely opposed to the principles laid downFby this Court in Sunil Batra’s case. [Para 21][655-C-D]

2.4 In the instant case, the period of solitary confinementis for about ten years and has two elements: one, from 2006 tillthe disposal of mercy petition in 2013; and secondly from thedate of such disposal till 2016. [Para 23][657-B]G

2.5 Having considered the entirety of matter, the impact ofsolitary confinement were obviously evident in the instant case,as would be clear from the letter given by the medical professionalon 6.11.2011 and the communication emanating from the jail on8.11.2011. The incarceration in solitary confinement thus did showHill effects on the well-being of the appellant. In the backdrop of these features of the matter, the appellant is entitled to have thedeath sentence imposed upon him to be commuted to deathsentence to life. [Para 25][658-C-D]

2.6 Considering the entirety of facts and circumstances onrecord, ends of justice would be met if while commuting the deathsentence awarded to the appellant, the sentence of lifeimprisonment is imposed upon him with a rider that he shallundergo minimum sentence of 30 years and if any application forremission is moved on his behalf, the same would be consideredon its own merits only after he has undergone actual sentence of30 years. If no remission is granted, the sentence of imprisonmentfor life shall mean till the remainder of his life. [Para 27][659-A-B]

3. The instruction quoted in paragraph 3(f) of this Judgmentas regards the procedure governing petitions for mercy in deathsentence cases, leads to an incongruous situation. According toit, the mercy petition must be filed within seven days of thedisposal of the appeal or dismissal of special leave petition. Aconvicted accused is entitled to file a review petition within thirtydays. An anomalous situation, like the instant one, may arise whereeven before the review is filed, the mercy petition is required tobe filed. The concerned instruction requires suitable modificationso as to enable the convicted accused to file mercy petition afterexhaustion of remedies in Court of law. [Para 29][659-C-D]

B. A. Umesh v. High Court of Karnataka (2011) 3 SCC85 : [2011] (2) SCR 367; Mohd. Arif @ Ashfaq vs.Registrar General, Supreme Court of India & Ors.(2014) 9 SCC 737 : [2014] (11) SCR 1009; Mohd.Mannan alias Abdul Mannan vs. State of Bihar (2019)16 SCC 584 : [2019] (8) SCR 266 – referred to.

A.G. Perarivalan vs. State through Superintendent ofPolice & Anr. 2022 SCC Online SC 635 – distinguished.

Sunil Batra v. Delhi Administration & Others (1978) 4SCC 494; Ajay Kumar Pal v. Union of India & Anr.2015 (2) SCC 478:[2014] (12) SCR 441; GopalVinayak Godse vs. State of Maharashtra AIR 1961 SC600 : [1961] SCR 440 – relied on.

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ACase Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealCNo.1892 of 2022.

From the Judgment and Order dated 29.09.2021 of the High Courtof Karnataka at Bengaluru in Writ Petition No.53944 of 2016.

Dr. Yug Mohit Chaudhry, Siddhartha Sharma, PrabuRamasubramaniam, Ms. Payoshi Roy, Raghunatha Sethupathy B., Ms.DPriya R., K. Paari Vendhan, Advs. for the Appellant.

K. M. Nataraj, ASG, Nikhil Goel, AAG, Ms. Sonia Mathur, Sr.Adv., Ms. Khushboo Aggarwal, Ms. Prerna Dhall, Ms. Simranjeet SinghSaluja, Sughosh Subramanyam, Shailesh Madiyal, Sanjay Kumar Tyagi,Arvind Kumar Sharma, Shubhranshu Padhi, Ashish Yadav, Rakshit Jain,EVishal Banshal, Aditya K. Roy, Advs. for the Respondents.

The Judgment of the Court was delivered by UDAY UMESH LALIT, CJI

1. Leave granted.F

2. This appeal challenges the judgment and order dated 29.9.2021passed by the High Court of Karnataka at Bengaluru, dismissing WritPetition No. 53944/2016 (GM-Res) preferred by the appellant herein.Said writ petition had prayed, inter alia, for following reliefs: - (A)“Issue appropriate writs, orders or directions directing theGRespondents to produce mercy files pertaining to thePetitioner, all the relevant papers and correspondencepertaining to the Petitioner’s mercy petition, for the perusalof the Court since the Petitioner has been able to show agrave, and unexceptionable delay in such processes asHundertaken by the Respondents.

(B)Issue appropriate writs, orders or directions directingAproduction of medical file of the Petitioner from prison fromthe date of his arrest.

(C)Issue appropriate writs, orders or directions and in particulara writ of Declaration, declaring that the execution of thesentence of death on the Petitioner (as communicatedBthrough letter dated 15.05.2013 - F.No.14/1/2011-JudicialCell, Annexure N hereto) pursuant to the rejection of hismercy petition by the office of the Hon’ble President ofIndia is unconstitutional and bad in law.

(D)Issue appropriate writs, orders or directions commuting thedeath sentence of the Petitioner to imprisonment for life.

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(E)Declare that the decision of the office of the Hon’blePresident of India rejecting the mercy petition filed by thePetitioner is illegal, void and unenforceable; D

(F)Declare that the decision of the office of the Hon’bleGovernor of Karnataka rejecting the mercy petition filedby the Petitioner is illegal, void and unenforceable; (G)Quash and set aside the order of President of India rejectingthe mercy petition filed by the Petitioner; E

(H)Quash and set aside the order of the Governor of Karnatakarejecting the mercy petition filed by the Petitioner;

(I)Grant inspection of the documents mentioned in (A) and(B) to the Petitioner; (J)Issue any such other writs, orders and directions as thisHon’ble Court deems fit in the facts and circumstances ofthe case in the interest of justice and equity.

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…..”

3. The basic facts leading to the filing of said Writ Petition are as G

under: -

(a) One Jayashri, wife of Maradi Subbaiah was found rapedand murdered in her home on 28.02.1998, which led to theregistration of Crime No. 108/1998 with Peenya CirclePolice Station, Yeshwanthpur Sub- Division, Bengaluru City.

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AThe appellant was arrested in connection with said crimeon 2.3.1998 and has been in custody since then. After dueinvestigation, the appellant was tried in Sessions Case No.725/1999 on the file of Sessions Judge, Fast Track Court-VII, Bengaluru for having committed offences punishableunder Sections 302, 376 and 392 of the Indian Penal Code,B1860[1].

(b) By its judgment dated 26.10.2006, the trial Court convictedthe appellant for the aforesaid offences and by order dated27.10.2006, awarded punishment of death sentence, subjectto confirmation by the High Court. The appellant wasCimmediately transferred to Belgaum Central Prison andaccording to the appellant, he was kept in solitaryconfinement.

(c) Case for confirmation of death sentence was registered asCriminal Reference No. 3/2006 before the High Court. TheDappellant also filed Criminal Appeal No. 2408/2006challenging his conviction. The matter was heard by a Benchof two Judges, which confirmed the order of conviction,but disagreed on the sentence to be imposed. While Mr.Justice V.G. Sabhahit confirmed the award of deathEsentence, Mr. Justice R.B. Naik commuted the deathsentence to life imprisonment.

(d) The matter was therefore referred to the third Judge i.e.,Mr. Justice S.R. Bannurmath on the issue of sentence, whoaffirmed the award of death sentence by his judgment dated18.2.2009.F

(e) The matter was carried further by the appellant by filingCriminal Appeal Nos. 285-286/2011 before this Court, whichwere dismissed by this Court vide order dated 1.2.2011[2],affirming the appellant’s conviction and sentence of deathGimposed upon him.

(f) According to the procedure governing petitions for mercyin death sentence cases, a death convict can prefer a petitionfor mercy within seven (7) days after the dismissal of his 1 “IPC”, for shortH2 B.A. Umesh v. High Court of Karnataka, (2011) 3 SCC 85.

appeal by this Court or rejection of application for specialleave to appeal. The relevant instructions in that behalf readas under: - “I. A convict under sentence of death shall be allowed,if he has not already submitted a petition for mercy, forthe preparation and submission of a petition for mercy,seven days after, and exclusive of, the date on whichthe Superintendent of Jail informs him of the dismissalby the Supreme Court of his appeal or of his applicationfor special leave to appeal to the Supreme Court.

Provided that in cases where no appeal to the SupremeCourt, has been preferred or no application for specialleave to appeal to the Supreme Court has been lodged,the said period of seven days shall be computed fromthe date next after the date on which the period allowedfor an appeal to the Supreme Court or for lodging anapplication for special leave to appeal to the SupremeCourt expires.

…..”

(g) Having been informed about his right to file a mercy petitionas per procedure, the appellant preferred a petition seekingmercy on 8.2.2011, i.e., within seven days. The appellantalso preferred Review Petition against the decision dated1.2.2011 passed by this Court. Around the same time, WritPetition (Crl.) No. 52/2011 was preferred by the appellantin this Court praying, inter alia, for the relief of open Courthearing in review petition. In said writ petition, this Courtby order dated 9.3.2011, directed stay of execution of deathsentence. The Review Petition filed by the appellant wasdismissed by circulation by this Court vide its order dated7.9.2011.

(h) Mercy petition preferred by the appellant was rejected bythe Hon’ble President on 12.5.2013. An intimation in thatbehalf was sent vide letter dated 15.5.2013 to the appellant.

(i) Writ Petition (Crl.) No. 52/2011 preferred by the appellantwas decided alongwith Writ Petition (Crl.) No. 77/2014(Mohd. Arif @ Ashfaq vs. Registrar General, Supreme A

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636SUPREME COURT REPORTS

ACourt of India & Ors.) by a Constitution Bench of thisCourt vide judgment dated 2.9.2014[3]. It was held by majoritythat review petitions arising out of award of death sentencebe heard in open Court by a Bench of three Judges of thisCourt.

B(j)Consequently, the Review Petition which was rejectedearlier on 7.9.2011, was listed for re-hearing before a Benchof three Judges of this Court, which by its order dated3.10.2016[4], dismissed the Review Petition and affirmed theaward of death sentence. The order stated that on carefulcomparison of aggravating and mitigating circumstances andCkeeping in view the principles of law laid down by this Court,the Court was not inclined to allow the Review Petition ormodify the order dated 1.2.2011.

(k) Within few days thereafter, Writ Petition No. 53944/2016was preferred by the appellant seeking reliefs as extractedDhereinabove. The High Court by its order dated 20.10.2016,stayed execution of death sentence imposed upon theappellant. Thereafter, statements of objections werepreferred on behalf of the Union of India and State ofKarnataka, to which rejoinders were filed. An applicationEunder Section 151 of the Code of Civil Procedure, 1908was also preferred to bring on record certain documentsregarding medical condition of the appellant.

4. By its judgment and order dated 29.9.2021, the High Courtdismissed the aforesaid writ petition. After considering the submissionsFadvanced on behalf of the parties, the following conclusions were arrivedat by the High Court: - “(i)There is no excessive, unexplained, inordinate delayattributable to the respondents in deciding the mercy petition;

(ii) There is no violation of the petitioner’s right under ArticleG21 of the Constitution of India;

(iii) All the relevant and crucial materials required for decidingthe mercy petition were placed before His Excellency, the 3 (2014) 9 SCC 737.H4 (2017) 4 SCC 124

Governor and His Excellency, the President of India andnothing has been kept out of consideration;

(iv) Petitioner cannot be said to have been kept in solitaryconfinement.”

5. In the challenge raised in the instant matter, while issuing notice,the order dated 31.1.2022 passed by this Court noted the submissions onbehalf of the appellants as under: - “a)Even after recording a finding that there was avoidable delayto the extent of 550 days in disposing of the mercy petition,the High Court did not grant any relief to the petitioner.

b)Going by the letter written by a Medical Officer, whichletter was not controverted, the petitioner was kept in solitaryconfinement for about 11 years. Thus, the law laid down bythis Court in Sunil Batra v. Delhi Administration & Others[5]was violated.

c)The letter written by the Medical Officer was quite clearthat because of the psychological condition, the petitionerwas unable to make any mercy petition. This fact was alsonot taken into account in correct perspective by the HighCourt.”

By said order, this Court also called for certain documents as under:- “a.The State shall place before us the Report(s) of all theProbation Officer(s) relating to the accused before the nextdate of hearing. In case there have been more than oneReport, let all Reports be placed for the consideration ofthis Court.

b.Since the National Institute of Mental Health and NeuroSciences (NIMHANS) at Bengaluru, has on the earlieroccasion made psychological assessment of the petitioner,the Director NIMHANS is directed to constitute a suitableteam for psychological evaluation of the petitioner and senda Report before the next date of hearing.

c.The Jail Authorities, Belgaum Central Prison where thepetitioner is presently lodged shall render complete co- 5 (1978) 4 SCC 494

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Aoperation in facilitating access to and due evaluation of thepetitioner in all respects.”

6. When the matter was taken up on 21.4.2022, after noting thesubmission advanced on behalf of the appellant that the appellant hadbeen kept in solitary confinement right from the decision of the SessionsCourt, directions were issued to the District Judge, Belgaum to cause aninspection to be undertaken and submit a report. The text of the orderwas as under: - B

“The basic submissions raised on behalf of the petitioner wererecorded in the order dated 31.01.2022.

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While elaborating those submissions, Dr. Yug Mohit Chaudhry,learned advocate, has stressed the point that the petitioner waskept in solitary confinement right from the decision of the SessionsCourt awarding him death sentence. Our attention is invited tovarious documents including the Prison Manual in support of thesubmission that, as the petitioner was segregated and kept in aseparate Cell, that would amount to solitary confinement, in termsof the law laid down in Sunil Batra Etc. vs Delhi Administrationand Ors. Etc[5].

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The submission is opposed on behalf of the State Governmentand though no specific reply was filed in the High Courtcontroverting the basic allegations in the writ petition, Mr. NikhilGoel, learned AAG for the State, on instructions, submits thatvideo conferencing can be arranged so that this Court can haveclear knowledge about the circumstances in which the petitionerhas been lodged in a Cell.

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It is true that the Hon’ble Judges constituting the Bench inSunil Batra’s[5]case had visited the jail premises themselves inorder to have first-hand knowledge about the conditions in whichsaid petitioner was lodged. We may at this stage rely upon thelocal inspection to be conducted by the District Judge, Belgaumwho also holds the charge as the Chairman of the District LegalServices Committee, Belgaum.

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We therefore, direct the District Judge, Belgaum to cause localinspection done by himself and place a report alongwith pictures,if any, to enable us have a clear understanding of the ground H

situation. The report shall concentrate on location of the barracksin which the cells of Death Row Convicts are situated.

It is made clear that the Cells which are close to the gallowsand are used for keeping persons about to be executed, aredifferent from the Cells for the Death Row Convicts.

The inspection shall cover issues whether the inmates of theconcerned cells are allowed to intermingle with fellow prisoners,the way the meals are served to them and the duration for which the inmates are allowed to come out oftheir individual cells. These are only illustrative pointers. Whatwe want to gather is the typical life-style of Death Row Convictsand how their days are spent.

Let the report be made as early as possible and latest by25.04.2022.

The report shall be sent through electronic mode at the followingEmail id.: [REDACTED].

Let copy of this order be sent through electronic mode to theDistrict Judge, Belgaum.

To our specific query as to the manner in which the MercyPetition of the petitioner was processed, Ms. Sonia Mathur, learnedSenior Advocate appearing for Union of India has placed theconcerned file for our perusal. The Registry is directed to makecopies of the file and return the same to the concerned advocateon record by tomorrow.”

7. Accordingly, report dated 21.4.2022 has been placed on recordby Principal District & Sessions Judge, Belgaum alongwith picturephotograph(s) of the concerned Jail barracks and the cells. The Reportis as under: -

1. “As per the directions, I visited Central Prison, Hindalaga at 2.15 p.m. without prior notice to the Jail Authorities.

2. The concerned barrack wherein the death convict Sri B AUmesh is housed is on the North-Eastern side facing East in theCentral Prison Hindalga. There are six cells each measuring 8x10feet approximately. Each cell has a toilet in the corner with anadequate water facility. Each of the prisoners is given a flat A

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mattress and they are at liberty to have their own bedding. Thereis electric light in each of the cells which can be put on at theirwish and they have one window facing towards the West. Thecells are covered with grill doors and adequate light and air isavailable. These six cells are of tiled roof. Encircling the six cells,there is guard room and another common toilet outside within thecompound. Even in the compound of the barrack, there is a facilityfor washing of the clothes etc. It was informed that prison alsohas R.O. Water facility which would be provided in plastic pots.

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3. Out of these six cells, five are occupied. In one of the cells,there are four persons involved in an offence of kidnapping,robbery, and murder. They are Siddhalingesh, Suraj, Akshay andJameer. In another cell, there are two occupants viz., Sameer andShakib, who are involved in offence under Section 307 of IPC.Another cell is occupied by Balu involved in a murder case. Theyare all under trial prisoners.

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4. The Remaining two cells are occupied by one person each i.e,Akash Desai convicted for offence under NDPS Act for 10 years.Southern most cell is occupied by death convict Shri. B.A. Umesh.They informed that they are in the said cells for the last 3 monthsto 8 years. The other 26 death convicts are in other barracksincluding high security barrack, women barrack and a hospital.

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5. The inmates of the cell informed that they are unlocked fromthe cells at about 6.00 a.m. They are allowed to wander in thecompound of the barrack. The barrack is guarded by five guardsand it was informed that they are free to wash their clothes andFtake bath outside and sit under the trees in the compound. Thereis also hospital block in the prison and if necessary, they will beescorted to the hospital where there is a Medical Officer available.Hospital also has inpatient facilities and mini laboratory is alsoadjoining it. The inmates also told me that they can talk to fellowprisoners and there are no restrictions during daytime. The cellsGwill be locked again at 6.00 p.m. in the evening.

6. It is informed that breakfast is served at about 7.30 in themorning, lunch will be served at about 11.00 a.m. and supper wouldbe served at 4.30 p.m. The inmates are free to consume the supperat any time they find it convenient and they can eat sitting together.

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B. A. UMESH v. UNION OF INDIA & ORS.

[UDAY UMESH LALIT, CJI]

All the inmates including Shri. B.A. Umesh informed that thequality of food is good and adequate. It was informed by the jailauthorities that a minimum of five guards are posted in the barrackon a rotation basis.

7. It was also informed that in one of the cells there is a TV fixedwhich may be seen by all the inmates together.

8. It was also informed that prisoners are at liberty to purchasebakery items which are prepared by the inmates and sold in theprison itself. It was informed that the prisoners purchase the bakeryitems out of the earnings made by them.

9. Adjoining the said barrack of six cells, on the northern side,there is a gate leading to the gallows. There is no separate cellmeant for death convict, who would be kept in the cell before heis taken to the gallows.

10. Thus it is observed that the cells have adequate light, air, drinkingwater facilities, a common facility to view TV, and adequate waterfor bathing and washing of the clothes. The cells are enclosed ina separate compound within the prison. They can move aroundthe cells freely between 6.00 a.m. and 6.00 p.m.

11. The photographs and videos of the cells are attached with thisreport for kind perusal.”

8. On the subsequent date, the submissions advanced on behalfof the appellant were discussed in the order dated 26.4.2022 as under: - “The Principal District and Sessions Judge, Belagavi has placedon record his Report dated 21.04.2022. Copies of the Report havebeen furnished to the parties.

Dr. Yug Mohit Chaudhry, learned advocate submits that sincethe last date of hearing, the counsel for the petitioner have hadinteractions with the petitioner. Dr. Chaudhry fairly accepts thatwhatever is stated in the Report corresponds to the instructionsreceived from the petitioner and that the Report depicts true stateof affairs in the concerned Barrack and the Cell.

He, however submits that the petitioner was kept in what iscommonly called “Andheri Block” in Belagavi Prison from 2006to October, 2016 i.e. till stay was granted by the High Court to the A

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Aexecution of death sentence. It is submitted that there are 12Cells in that Block and only one prisoner is kept in a Cell; thepetitioner was not allowed to get out of his Cell at any time duringthe entire length of stay except for 2 Yoga sessions which wereconducted and one function where inmates were allowed to offerprayers to Lord Ayyappa. In his submission that was the worstBperiod of his stay inside the prison and the imprisonment in theCell in “Andheri Block” can certainly be said to be “Solitaryconfinement” as described in Sunil Batra Etc. vs DelhiAdministration and Ors. Etc.[5].

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Dr. Chaudhry further submits that after October, 2016 tillJanuary, 2019 the petitioner was lodged in same “Andheri Block”but was allowed to come out of the Cell thrice a day and afterJanuary, 2019 he was shifted to the present Barrack with respectto which the Report has been made.

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We have also had the benefit of interaction with the concernedJail Superintendent who is present in Court. He has accepted thatthe petitioner was kept in “Andheri Block” till January, 2019. Hehas also accepted that only one inmate is kept in a cell in said“Andheri Block”. It is however, stated that all the inmates areallowed to come out of their cells thrice a day for the duration of2-3 hours each. It is submitted that they are taken out at about6.30 A.M. in the morning and are re-lodged after the breakfast,again to be taken out for the purposes of lunch and supper andare finally re-lodged around 5.00 P.M. In sum and substance,according to him, the inmates are allowed to come out of theirCells for about 6 hours everyday.

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It is further stated that the petitioner was shifted to the presentBarrack in January, 2019 by his predecessor and since then thepetitioner has been confined in the present Barrack incircumstances described in the Report.

Thereafter, submissions were advanced by Mr. Nikhil Goel,learned AAG for the State and Ms. Sonia Mathur, learned SeniorAdvocate for Union of India. After conclusion of their submissions,Dr. Chaudhry made his submissions in rejoinder. “

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9. We heard Dr. Yug Mohit Chaudhry, learned advocate assistedby Ms. Payoshi Roy, learned advocate for the appellant, Mr. Nikhil Goel,H

learned Additional Advocate General for the State and Ms. Sonia Mathur,learned Senior Advocate for Union of India. After conclusion ofsubmissions, the matter was reserved for orders.

10. The parties thereafter filed written submissions and, in thesubmissions filed on behalf of the appellant, the challenge has principallybeen raised on two grounds: (i) delay in deciding mercy petition and (ii)the Solitary Confinement that the appellant was subjected to. On thefirst issue, following chart has been placed on record: - “Chunks of Unexplained Delay A

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[2022] 8 S.C.R.

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Time Period Relevant to the Mercy Petition Adjudication E

On the point of Solitary Confinement, it has been submitted:- F

“31.The Petitioner submits that he was kept in single cell from2006 to 2016 in a block called the Andheri Block. Duringthis time, he was kept for most of the day inside the cell.The only other person he saw was the prison guard. Hewas made to eat and use the toilet within his cell and wasGnot allowed to meet or speak to any other inmates, to thisentire duration he was allowed to participate in a pooja anda yoga camp only in one instance. Therefore from 2006-2016 the Petitioner was kept in strict solitary confinement.

32. The Petitioner concedes that after 2016 the conditions ofHhis incarceration were gradually relaxed and at present,

even though he is kept in a single cell, he is allowed tomingle with other inmates in the yard during the day.

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33. The Petitioner submits that despite having pleaded thespecific conditions of his solitary confinement till 2016 inhis writ petition before the Hon’ble High Court as well asin his SLP before this Hon’ble Court the Respondent hasnot brought on record any material to the contrary.

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34. In its reply dated 9.1.2017 before the Hon’ble High Court(SLP Pg 316-325) and before this Hon‘ble Court theRespondent has merely stated that the Petitioner wasallowed visits to the library and canteen and allowed visitorsfrom time to time and hence his incarceration did notconstitute solitary confinement.

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35. That neither before the High Court nor in its affidavit inreply before this Hon’ble Court did the Respondent averthat the Petitioner was allowed to mingle with other prisonersDbetween 2006-2016. That had the Petitioner been allowedto mingle with other prisoners, the Respondents would havementioned the same in their affidavit in reply along with thefact of visits to the library and canteen. Therefore, it isclear that the Respondent’s oral argument made before thisHon’ble Court is nothing but an afterthought and sans anyEevidentiary basis.

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36. Further, the statements made by the superintendent ofBelagum Central Prison before this Hon‘ble Court onlypertains to the conditions of incarceration after 2019, whenthe Superintendent assumed his duties in Belgaum CentralPrison. These statements do not attest to the conditions ofincarceration prior to 2019.”

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11. In the written submissions filed on behalf of Union of India, ithas been asserted: - G

“A. RE: ALLEGED DELAY IN DECIDING THE MERCYPETITION

It is submitted that the Petitioner has conceded that there is noinordinate delay on part of the Respondent No.1 in deciding themercy petition. It is a settled position of law that there can be no H

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Aspecific time limit prescribed for deciding mercy petitions [See,Para 41-44 of Shatrughan Chauhan and Anr. v. Union ofIndia and Ors.[6]] and only undue or inordinate delay is what is tobe looked at [See, Para 16-17, Para 71-76 of Triveniben v. State of Gujarat[7]]. The time takenBfor collating the information and analyzing the same is not to beconsidered as undue. Further, it is also established that there canbe no absolute or unqualified rule laid down for the purposes ofdetermining delay in mercy petitions and several factors arerequired to be taken into account while considering the questionas to whether the death sentence should be vacated or not [See,CPara 19 of Sher Singh & Ors. v. State of Punjab[8]]. Every case is required to be considered on its own facts and circumstances.

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It is submitted that the delay, if any, on part of the RespondentNo. 1 has to be calculated from 26.12.2012 [when the required 6 (2014) 3 SCC 1

7 (1989) 1 SCC 678H8 (1983) 2 SCC 344

information was sent to the Central Govt.] till 12.05.2013 [whenthe mercy petition was finally rejected]. This amounts toapproximately 5 months, which cannot be considered as inordinatedelay. In any-event, the Petitioner has himself conceded that thedelay in considering the mercy petition is not on account of theRespondent No. 1.

Without prejudice to the above, it is further submitted that thePetitioner did not prefer a Writ Petition till 17.10.2016 against theorder of rejection of mercy petition by the Hon’ble President thatwas done on 12.05.2013. This step of seeking a judicial review ofthe rejection of the mercy petition was only taken after the ReviewPetition was finally rejected by the Hon’ble Supreme Court aftergranting a hearing in Open Court. The Convict was protected bythe stay on execution granted by this Hon’ble Court in Writ PetitionNo. 52 of 2011 (B.A. Umesh v. Registrar, Supreme Court of India).The Petitioner couldn’t be placed on the same pedestal as a convictcondemned to death as he still had a judicial avenue open and noreal apprehension of execution.

B. RE: SOLITARY CONFINEMENT

It is submitted that the aspect of solitary confinement, if any, ofthe Petitioner is within the purview of the State Government/Respondent No. 2 and therefore, no specific submissions are beingmade in this regard on behalf of the Respondent No.1. In anyevent, vide order dated 21.04.2022, the Hon’ble Supreme Courthad directed the District Judge, Belgaum, to conduct a localinspection of the jail, concentrating on the location of the barracksin which the cells of the Death Row Convicts are situated, andplace a report before the Hon’ble Court along with pictures, ifany. In terms of the same, a report was placed before the Hon’bleCourt which clearly indicated that the Petitioner was not placedin solitary confinement.

C. RE: RELEVANT RECORDS NOT BROUGHT TO THENOTICE OF THE HON’ BLE PRESIDENT

It is submitted that the relevant documents were duly consideredby the Hon’ble President before rejecting the Mercy Petition ofthe Petitioner. The Mercy Petition was forwarded to RespondentNo.1 on 30.08.2012 for consideration by the Hon’ble President AB

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Aunder Article 72 of the Constitution of India along with the relevantdocuments. On 18.09.2012, Respondent No. 1 sought additionalinformation/documents with regard to the Medical Health Report,details of previous criminal record and few other aspectsconcerning the Petitioner [Letter dated 18.09.2012 at page17 of the Additional Documents filed by the Petitioner]. InBresponse to the said letter, the required documents/informationwas sent by the Respondent No. 2 vide letter dated 26.12.2012,including medical report of the Petitioner dated 05.10.2012 [Letterdated 26.12.2012 at page 19 of the Additional Documentsfiled by the Petitioner].”

C12. We now consider the first submission regarding delay inexecution of death sentence due to pendency of Mercy Petition(s). Atthis stage, we may refer to the following passage from the three JudgeBench decision of this Court in Ajay Kumar Pal v. Union of India &Anr.[9](to which one of us was a party) which noted some of the decisionsDrendered by this Court on the point:

“7. The question whether delay in execution of death sentencecan be a sufficient ground or reason for substituting such sentenceby life imprisonment has engaged the attention of this Court overa period of time. Some of those salient instances are:

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7.1. In T.V. Vatheeswaran v. State of Tamil Nadu[10], in an appealarising from the Judgment of the High Court confirming the deathsentence, the fact that the appellant was awarded death sentenceby the first court eight years earlier, was noted by this Court.After referring to few earlier cases, where such delay during theFpendency of the appellate proceedings was considered, it wasobserved: (SCC pp. 78-79, paras 21-21)

“20. . . . In the United States of America where the right to aspeedy trial is a constitutionally guaranteed right, the denial ofa speedy trial has been held to entitle an accused person to thedismissal of the indictment or the vacation of the sentenceG(vide Strunk v. United States [1973] 37 L.Ed. 56). Analogy ofAmerican Law is not permissible, but interpreting ourConstitution sui generis, as we are bound to do, we find no 9 2015 (2) SCC 478H10 1983 (2) SCC 68

impediment in holding that the dehumanising factor of prolongeddelay in the execution of a sentence of death has theconstitutional implication of depriving a person of his life in anunjust, unfair and unreasonable way as to offend theconstitutional guarantee that no person shall be deprived of hislife or personal liberty except according to procedureestablished by law. The appropriate relief in such a case is tovacate the sentence of death.

21. . . . Making all reasonable allowance for the time necessaryfor appeal and consideration of reprieve, we think that delayexceeding two years in the execution of a sentence of deathshould be considered sufficient to entitle the person undersentence of death to invoke Article 21 and demand the quashingof the sentence of death. We therefore accept the special leavepetition, allow the appeal as also the Writ Petition and quashthe sentence of death. In the place of the sentence of death,we substitute the sentence of imprisonment for life.”

7.2. Sher Singh and others v. State of Punjab[8]was a case wherethe death sentence already stood confirmed by dismissal of appealand review petition therefrom by this Court. Relying on theobservations in Vatheeswaran[10], delay in execution wasprojected as a ground in a petition under Article 32 of theConstitution of India. Though the Court was broadly in agreementwith observations in Vatheeswaran[10 ]it did not agree with thestatement to the effect: (SCC p. 79, para 21)

“21. . . . that delay exceeding two years in the execution ofsentence of death should be considered sufficient to entitle theperson under sentence to death to invoke Article 21 and demandthe questioning of the sentence of death.”

However, in the context of Mercy Petitions and exercise ofpower in connection thereto, it was observed in para 23 asunder: (Sher Singh Case[8], SCC pp. 357-58)

“23. We must take this opportunity to impress upon theGovernment of India and the State Governments that petitionsfiled under Articles 72 and 161 of the Constitution or underSections 432 and 433 of the Criminal Procedure Code must bedisposed of expeditiously. A self- imposed rule should be A

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followed by the executive authorities rigorously, that every suchpetition shall be disposed of within a period of three monthsfrom the date on which it is received. Long and interminabledelays in the disposal of these petitions are a serious hurdle inthe dispensation of justice and indeed, such delays tend to shakethe confidence of the people in the very system of justice.Several instances can be cited, to which the record of thisCourt will bear testimony, in which petitions are pending beforethe State Governments and the Government of India for aninexplicably long period. Undoubtedly, the executive has thepower, in appropriate cases, to act under the aforesaid provisionsbut, if we may remind, all exercise of power is preconditionedby the duty to be fair and quick. Delay defeats justice.”

7.3. The issue was settled by the Constitution Bench decision inTriveniben v. State of Gujarat[7], where it was concluded “Nofixed period of delay could be held to make the sentence of deathinexecutable ...”. The scope and ambit of exercise of jurisdictionin such cases was delineated thus in para 22: (SCC p. 697)

“22. . . . the only jurisdiction which could be sought to beexercised by a prisoner for infringement of his rights can be tochallenge the subsequent events after the final judicial verdictis pronounced and it is because of this that on the ground oflong or inordinate delay a condemned prisoner could approachthis Court and that is what has consistently been held by thisCourt. But it will not be open to this Court in exercise ofjurisdiction under Article 32 to go behind or to examine thefinal verdict reached by a competent court convicting andsentencing the condemned prisoner and even while consideringthe circumstances in order to reach a conclusion as to whetherthe inordinate delay coupled with subsequent circumstancescould be held to be sufficient for coming to a conclusion thatexecution of the sentence of death will not be just and proper.The nature of the offence, circumstances in which the offencewas committed will have to be taken as found by the competentcourt while finally passing the verdict. It may also be open tothe court to examine or consider any circumstances after thefinal verdict was pronounced if it is considered relevant. Thequestion of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to theconclusion whether the sentence could be altered on that groundalso.”

7.4. In Shatrughan Chauhan[6]after considering law on the pointas regards delay in execution of the death sentence and the resultanteffect, as also the scope and ambit of exercise of power, it was observedin paras 38, 41 and 42 as under: (SCC pp. 38-39)

“44. In view of the above, we hold that undue long delay inexecution of sentence of death will entitle the condemnedprisoner to approach this Court under Article 32. However,this Court will only examine the circumstances surroundingthe delay that has occurred and those that have ensued aftersentence was finally confirmed by the judicial process. ThisCourt cannot reopen the conclusion already reached but mayconsider the question of inordinate delay to decide whetherthe execution of sentence should be carried out or should bealtered into imprisonment for life.

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47. It is clear that after the completion of the judicial process,if the convict files a mercy petition to the Governor/President,it is incumbent on the authorities to dispose of the sameexpeditiously. Though no time limit can be fixed for theGovernor and the President, it is the duty of the executive toexpedite the matter at every stage, viz., calling for the records,orders and documents filed in the court, preparation of thenote for approval of the Minister concerned, and the ultimatedecision of the constitutional authorities. This court, inTriveniben[7][,] further held that in doing so, if it is establishedthat there was prolonged delay in the execution of deathsentence, it is an important and relevant consideration fordetermining whether the sentence should be allowed to beexecuted or not.

48. Accordingly, if there is undue, unexplained and inordinatedelay in execution due to pendency of mercy petitions or theexecutive as well as the constitutional authorities have failedto take note of/consider the relevant aspects, this Court is wellwithin its powers under Article 32 to hear the grievance of the A

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Aconvict and commute the death sentence into life imprisonmenton this ground alone however, only after satisfying that thedelay was not caused at the instance of the accused himself.To this extent, the jurisprudence has developed in the light ofthe mandate given in our Constitution as well as variousUniversal Declarations and directions issued by the UnitedBNations.”

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13. In Ajay Kumar Pal[9]the delay in question was three yearsand ten months which was found to be inordinate and that said delaywas not to the account of said petitioner but to the account of thefunctionaries and authorities in question. Pertinently, the matter was alsoCconsidered from the standpoint of solitary confinement and violations inthat behalf.

14. Paras 44 and 48 of the decision of this Court in ShatrughanChauhan[6]which were quoted in Ajay Kumar Pal[9], had laid down thatundue long delay in execution of death sentence would entitle theDcondemned prisoner to pray for commuting the death sentence to that oflife imprisonment. The individual cases were thereafter dealt with inShatrughan Chauhan[6]and paragraph 105 onwards of said decisionshow that in cases where there was a delay of 12 years (para 118), 9 ½years (Para 137), 9 ½ years (Para 147), 7 years and 8 months (ParaE161), 5 years and 8 months (Para 175) and 7 years and 5 months (Para209), the benefit of commutation was extended by this Court.

15. If the instant matter is considered in light of these cases andthe settled principles, the alleged period in the instant matter is of twoyears and three months i.e., starting from the receipt of the mercy petitionFon 3.3.2011 by the Central Government till the disposal on 15.5.2013. Itmust be stated that soon after the receipt of the said mercy petition, theMinistry of Home Affairs, Government of India forwarded the mercypetition to the Principal Secretary, Home Department, Karnataka sothat the Governor, Karnataka could consider the mercy petition first. Inthe meantime, on 9.3.2011 in Writ Petition No.52 of 2011 preferred byGthe appellant, this Court had granted stay of execution of death sentence.

The matter was considered by the State Cabinet on 7.5.2012 whichdecided to approve the note prepared by the Home Departmentrecommending rejection of the mercy petition. The matter was thenplaced before the Hon’ble Governor who rejected the mercy petition onH

06.06.2012. The copy of the order passed by the Hon’ble Governor andrelevant documents were forwarded by the State Government to theCentral Government on 30.08.2012.

On 18.09.2012, certain information was sought by the CentralGovernment from the State Government which was furnished to theCentral Government on 26.12.2012. The matter was thereafter takenup at the Central Government level. The Ministry of Home Affairsprepared an appropriate note for the Hon’ble President who afterconsidering the entirety of the matter rejected the mercy petition on12.05.2013.

16. Thus, the entire period beginning from 03.03.2011 to 15.05.2013spanning over a period of 2 years and 3 months saw disposal of mercypetition at two different levels, one, by the Hon’ble Governor and otherby the Hon’ble President. All the while, there was an order of staygranted by this Court on 19.3.2011 which was operating all through.

17. First and foremost, the time taken by each of these authoritiesand the functionaries assisting them cannot be called or termed as“inordinate delay” and secondly, it was not as if every passing day wasadding to the agony of appellant. The order of stay of execution had putthe matter in a different perspective. In the given facts and circumstancesof the case, in our view, the first submission does not merit acceptance.We are conscious of the fact that in a recent decision in A.G. Perarivalanvs. State through Superintendent of Police & Anr.[11], a Bench of threejudges of this court commuted the sentence of death to life as the petitionpreferred under Article 161 of the Constitution had remained pendingfor two and half years with the Hon’ble Governor, despite therecommendations of the State Cabinet for remission of the sentence. Inthat case no decision was taken by the Hon’ble Governor in spite of therecommendations of the State Cabinet and as such the benefit ofcommutation was extended. The facts which came up for considerationin said decision thus stand on a completely different footing as againstthe instant matter.

18. We now move to the second submission pertaining to solitaryconfinement of the appellant. Reliance in this behalf has been placed onthe decision of this Court in Sunil Batra vs. Delhi Administration &Ors.[5]; and also on the decision of Ajay Kumar Pal[9]in which segregation A

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Aof the concerned petitioner, from the day he was awarded death sentencetill his mercy petition was disposed of, was taken to be in violation of thelaw laid down by this Court in Sunil Batra[5]and the death sentence wascommuted to life on both counts, namely; inordinate delay in consideringthe mercy petition and the solitary confinement that the concernedpetitioner was subjected to.B

19. In the instant case, the letter written by Medical Officer,Belgaum Central Prison on 6.11.2011 did say that the appellant was keptin solitary confinement and said letter has been heavily relied upon bythe appellant in support of the second submission. According to the letter,the appellant was kept in solitary confinement since his admission to theCprison in October, 2006 and that apart from common illness such asdiarrhoea, fever, running nose and backache, the appellant was found tobe suffering from psychosis with depression. Pertinently, on 8.11.2011, aletter was sent by the Chief Superintendent, Belagavi Central Prison toAdditional DGP and IG Prisons, Karnataka to the following effect: - D

“….. With respect to the above subject, we submit, that the deathpenalty convict no. 307, Umesh B.R. son of Ajjappa Reddy’sappeal petition was rejected by the Hon’ble Supreme Court, NewDelhi and a letter confirming his death sentence has been sent tothis office as mentioned in the reference. The said subject matterEand processes have been explained in detail several times to theconvict in the presence of all officers, but as the convict is mentallyill he is not agreeing to submit any more mercy petitions. So wehave not received any mercy petitions from him. The convict wasexamined by the Prison Doctors and have given a medical reportwhich is attached with this letter for your perusal and for furtherFaction……”

This letter also affirms the fact that the appellant was mentally ill.

20. The act on part of the medical officer in checking the healthand well-being of the appellant was obviously because of the mandateGof Section 29 of the Prisons Act, 1894 which is to the following effect: -

“29. Solitary confinement. – No cell shall be used for solitaryconfinement unless it is furnished with the means of enabling theprisoner to communicate at any time with an officer of the prison,and every prisoner so confined in a cell for more than twenty-four hours, whether as a punishment or otherwise, shall be visitedH

at least once a day by the Medical Officer or MedicalSubordinate.”

It must, therefore, be taken to be accepted that from 2006 till2016, the appellant was kept in solitary confinement in “Andheri Block”and it was only thereafter, some relaxation in the rigours of the solitaryconfinement was effected and as the record shows, from 2016 onwardsthe conditions were gradually relaxed.

21. The law on the point, as declared in Sunil Batra[5]is very clearand as was held by this Court in Ajay Kumar Pal[9], segregation of aconvict from the day when he was awarded death sentence till his mercypetition was disposed of, would be in violation of law laid down by thisCourt in Sunil Batra[5]. In the instant case, the death sentence wasawarded to the appellant in 2006 by the trial Court and the mercy petitionwas finally disposed of by the Hon’ble President on 12.5.2013, whichmeans that the incarceration of the appellant in solitary confinement andsegregation from 2006 to 2013 was without the sanction of law andcompletely opposed to the principles laid down by this Court in SunilBatra[5].

22. In Ajay Kumar Pal[9], on the issue of segregation of the convictin violation of the principles laid down in Sunil Batra[5], this Courtobserved: - “9. Furthermore, as submitted in the petition, the petitioner has allthe while been in solitary confinement i.e. since the day he wasawarded death sentence. While dealing with Section 30(2) of thePrisons Act, 1894, which postulates segregation of a person “undersentence of death” Krishna Iyer, J. in Sunil Batra[5 ]observed:(SCC p. 563, para 197-A)

“197-A. (5) The crucial holding under Section 30(2) is that aperson is not ‘under sentence of death’, even if the sessionscourt has sentenced him to death subject to confirmation bythe High Court. He is not ‘under sentence of death’ even ifthe High Court imposes, by confirmation or fresh appellateinfliction, death penalty, so long as an appeal to the SupremeCourt is likely to be or has been moved or is pending. Even ifthis Court has awarded capital sentence, Section 30 does notcover him so long as his petition for mercy to the Governorand/or to the President permitted by the Constitution, Code AB

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and Prison Rules, has not been disposed. Of course, oncerejected by the Governor and the President, and on furtherapplication there is no stay of execution by the authorities, heis ‘under sentence of death’, even if he goes on making furthermercy petitions. During that interregnum he attracts thecustodial segregation specified in Section 30(2), subject to theameliorative meaning assigned to the provision. To be ‘undersentence of death’ means ‘to be under a finally executabledeath sentence’.”

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(emphasis in original)

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“223. The expression ‘prisoner under sentence of death’ inthe context of sub-section (2) of Section 30 can only mean theprisoner whose sentence of death has become final, conclusiveand indefeasible which cannot be annulled or voided by anyjudicial or constitutional procedure. In other words, it must bea sentence which the authority charged with the duty to executeand carry out must proceed to carry out without interventionfrom any outside authority.”

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10. In the light of the enunciation of law by this Court, the petitionerEcould never have been “segregated” till his mercy petition wasdisposed of. It is only after such disposal that he could be said tobe under a finally executable death sentence. The law laid downby this Court was not adhered to at all while confining the petitionerin solitary confinement right since the order of death sentence bythe first court. In our view, this is complete transgression of theFright under Article 21 of the Constitution causing incalculable harmto the petitioner.

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11. The combined effect of the inordinate delay in disposal ofmercy petition and the solitary confinement for such a long period,in our considered view has caused deprivation of the mostcherished right. A case is definitely made out under Article 32 ofthe Constitution of India and this Court deems it proper to reachout and grant solace to the petitioner for the ends of justice. We,therefore, commute the sentence and substitute the sentence oflife imprisonment in place of death sentence awarded to thepetitioner. The writ petition thus stands allowed.”

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23. In its jurisdiction under Article 32 of the Constitution of India,this Court had thus deemed it proper to reach out and grant solace to thepetitioner on both grounds, namely, delay in disposal of mercy petitionand solitary confinement for a long period. The period of solitaryconfinement in Ajay Kumar Pal[9]in violation of the law laid down inSunil Batra[5]was from 2007 till 2014, i.e., for nearly seven years. In theinstant case, the period of solitary confinement is for about ten yearsand has two elements: one, from 2006 till the disposal of mercy petitionin 2013; and secondly from the date of such disposal till 2016. The questionthen arises: whether on this ground alone, the appellant is entitled tohave the death sentence commuted?

24. In Shatrughan Chauhan[6], solitary confinement was acceptedand recognised as one of the grounds on the basis of which death sentencecan be commuted. However, in the batch of matters under considerationin Shatrughan Chauhan[6], no benefit was granted to any of the convictson this ground. Paragraph 88 onwards, the effect of the law laid downby this Court in Sunil Batra[5]and other cases was noticed and it wasconcluded as under: -

“90. It was, therefore, held in Sunil Batra case[5], that the solitaryconfinement, even if mollified and modified marginally, is notsanctioned by Section 30 of the Prisons Act for prisoners “undersentence of death”. The crucial holding under Section 30(2) isthat a person is not “under sentence of death”, even if the SessionsCourt has sentenced him to death subject to confirmation by theHigh Court. He is not “under sentence of death” even if the HighCourt imposes, by confirmation or fresh appellate infliction, deathpenalty, so long as an appeal to the Supreme Court is likely to beor has been moved or is pending. Even if this Court has awardedcapital sentence, it was held that Section 30 does not cover himso long as his petition for mercy to the Governor and/or to thePresident permitted by the Constitution, has not been disposed of.Of course, once rejected by the Governor and the President, andon further application, there is no stay of execution by theauthorities, the person is under sentence of death. During thatinterregnum, he attracts the custodial segregation specified inSection 30(2), subject to the ameliorative meaning assigned to theprovision. To be “under sentence of death” means “to be under afinally executable death sentence”.

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A91. Even in Triveniben v. State of Gujarat[7], this Court observedthat keeping a prisoner in solitary confinement is contrary to theruling in Sunil Batra[5]and would amount to inflicting “additionaland separate” punishment not authorised by law. It is completelyunfortunate that despite enduring pronouncement on judicial side,the actual implementation of the provisions is far from reality. WeBtake this occasion to urge to the Jail Authorities to comprehendand implement the actual intent of the verdict in Sunil Batra v.Delhi Admn.[5].”

25. The benefit of commutation was, however, granted in AjayKumar Pal[9]on the ground that the solitary confinement was against theCprinciples laid down in Sunil Batra[5]and also on the ground of delay.Having considered the entirety of matter, in our view, the impact ofsolitary confinement were obviously evident in the instant case, as wouldbe clear from the letter given by the medical professional on 6.11.2011and the communication emanating from the jail on 8.11.2011. The Dincarceration in solitary confinement thus did show ill effects on thewell-being of the appellant. In the backdrop of these features of thematter, in our view, the appellant is entitled to have the death sentenceimposed upon him to be commuted to death sentence to life.

26. At this stage, we may refer to a recent decision by a three-EJudge Bench in Mohd. Mannan alias Abdul Mannan vs. State ofBihar[12], where while accepting the review petition, the sentence ofdeath was commuted to imprisonment for life. However, it was observedin paragraphs 87 and 88 as under: - “87. Even though life imprisonment means imprisonment for entireFlife, convicts are often granted reprieve and/or remission ofsentence after imprisonment of not less than 14 years. In thiscase, considering the heinous, revolting, abhorrent and despicablenature of the crime committed by the petitioner, we feel that thepetitioner should undergo imprisonment for life, till his natural deathand no remission of sentence be granted to him.G88. We, therefore, commute the death sentence imposed on thepetitioner to life imprisonment, till his natural death, without reprieveor remission.”

12 (2019) 16 SCC 584H

B. A. UMESH v. UNION OF INDIA & ORS.[UDAY UMESH LALIT, CJI.

27. Considering the entirety of facts and circumstances on record,in our view, ends of justice would be met if while commuting the deathsentence awarded to the appellant, we impose upon him sentence of lifeimprisonment with a rider that he shall undergo minimum sentence of 30years and if any application for remission is moved on his behalf, thesame shall be considered on its own merits only after he has undergoneactual sentence of 30 years. If no remission is granted, it goes withoutsaying that as laid down by this Court in Gopal Vinayak Godse vs.State of Maharashtra[13], the sentence of imprisonment for life shallmean till the remainder of his life.

28. The appeal is allowed accordingly.

29. Before we part, we must observe that the instruction quotedin paragraph 3(f) of this Judgment leads to an incongruous situation.According to it, the mercy petition must be filed within seven days of thedisposal of the appeal or dismissal of special leave petition. A convictedaccused is entitled to file a review petition within thirty days. Ananomalous situation, like the present one, may arise where even beforethe review is filed, the mercy petition is required to be filed. The concernedinstruction requires suitable modification so as to enable the convictedaccused to file mercy petition after exhaustion of remedies in Court oflaw.

Nidhi Jain(Assisted by : Shashwat Jain, LCRA)

Appeal allowed.

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