Delay in Execution: An Evaluation of Judicial Reasoning (1989) - PDF

National Law School Journal Volume 1 Issue 1 Article 15 1-7-1989 Delay in execution: an evaluation of the judicial reasoning NS Gopalkrishnan Follow this and additional works at: https://repository.nls.ac.in/...

National Law School Journal Volume 1 Issue 1 Article 15 1-7-1989 Delay in execution: an evaluation of the judicial reasoning NS Gopalkrishnan Follow this and additional works at: https://repository.nls.ac.in/nlsj Recommended Citation Gopalkrishnan, NS (1989) "Delay in execution: an evaluation of the judicial reasoning," National Law School Journal: Vol. 1: Iss. 1, Article 15. Available at: https://repository.nls.ac.in/nlsj/vol1/iss1/15 This Legislative or Case Note is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in National Law School Journal by an authorized editor of Scholarship Repository. For more information, please contact [email protected].  (1989) 1 NLSJ 169 Delay in execution: An evaluation of the judicial reasoning N.S. GOPAlAKRISHNAN Delay in execution of death sentence has created a judicial controversy involving principles of criminal and constitutional jurisprudence. The three judgmentsl delivered by the Supreme Court, on this aspect, though on different fact situations, forced the highest court of the land to come out with a Full Bench decision in Smt. Trivellibell v. State of Gujarat2 Though the Supreme Court has succeeded in resolving some of the issues raised through the new 'delay jurisprudence', it appears, that the Court has left many important problems unsettled leaving room for more· controversy in the future. An attempt is made in this paper to highlight the various issues involved in this area and the judicial approach towards these problems. It has been the judicial attempt to reduce capital punishment to the 'barest minimum'. This policy, in turn, led to the emergence of the 'delay jurisprudence' in our country. The court, it appears, adopted different techniques of interpretation of Article 21 of the Constitution to achieve this goal.3 The over-enthusiasm of the Supreme Court to reduce capital punishment into life imprisonment on the ground of delay in execution of death sentence has posed problems on two major issues: (1) period and stages of delay, and (2) jurisdiction of the Court to examine the issue at various stages. Delay in execution of death sentence can be caused at various stages of criminal prosecution. These can be identified as,- (a) delay caused before the final disposal of the case by the Supreme Court, (b) delay caused after the disposal of final appeal but before the filing of clemency petition, (e) delay caused during the disposal of clemency petition, and (d) delay caused after the disposal of the clemency petition. The right of the prisoner to file writ petition based on delay and the jurisdiction of the court to examine the delay caused during various stages can be classified into delay: 1. T.V. Vatlreeswaran v. Slate of Tamil Nadu (1983) :? see 68; Sire,. Singlr \'. Slare of Punjab (1985) 2 see 3./4 and 1m'ed Ahmed Abduillamid Pmmla \'. Stale of Malraraslrrra, (1985) 1 SCC 275. 2. (1989) 1 SCC 678. 3. See K.N. Chandrashckharan Pillai "Suprcmc COUl'l and Abolilion of Dearlr Sell/cnci' - All Emlualion of Tec/1IIiqui's of [nlc/prelarion". (1986) SCC (Cri) p. 1. 170 National Law School JOllmal (a) during judicial proceedings, (b) during pre-clemency petition period, (c) during pendency of clemency petition, and (d) during post-clemency petition period, petition being rejected. It was in Vatheeswarall,4 the Supreme Court for the first time examined through writ petition the question of delay in execution. Here the accused, a hard core criminal, was sentenced to death by the Sessions Court in 1975. It was alleged that after that he was kept in solitary confinement for about eight years5 While his appeal against cOtlvictionwas pending before the Supreme Court, a writ petition was filed stating that the long delay in execution ·of death sentence and the solitary confinement in prison violated Article 21 of the Constitution. The court consisting of O. Chinnappa Reddy and R.B. Mishra, JJ, raised the question whether in a case where after the death sentence was given, the accused person was made to undergo inhuman a~d degrading punishment or where the execution of the sentence was made to suffer the most excruciating agony and anguish was entitled to get any relief.6 The court examined the impact of delay in execution with the help of Indian,7 American and English cases8 and concluded that it has a dehumanising effect and was sufficient to get the benefit of reduction of capital punishment into life imprisonment.9 In this context the court added that the cause of the delay was immaterial. Even if it was caused by the accused himself it would not alter the dehumanising effect of the deiay.lo Thus the court recognised the self-induced delay also for reduction of the sentence of death. The court went a little further and tried to fix the period of delay that could entitle the condemned prisoner to get the benefit. After mentioning the provisions of Criminal Procedure Code for judicial proceedings and constitutional provisions for clemency the court opined~ 4. T.V. Vatheeswaran v. Stare of Tamil Nadu (1983) 2 SCC 68. 5. This can be imposed only by courts as directed in sections 73 and 74 of Indian Penal Code. See Sunil Batra v. Delhi Administration (1978) 4 see 494. The imposition of it by prison authorities is in violation of Indian Penal Code, prison rules, decision of Sunil Batra, Article 9 of the Declaration of Human Rights and Article 7 and 10(1) of the International Covenants on Civil and Political Rights. 6. Supra note 4 at p. 70. 7. The court examined the following cases where delay along with other circumstances were considered to reduce the sentence. They are Piare Dusadh v. Emperor AIR 1944 FC 1; Ediga Anamma v. Slale of A.P. (1974) 4 SCC 443; Stale of V.P. v. Lalla Singh AIR 1978 SC 348; Bhagwan Bux Singh v. Stare of V.P. AIR 1978 SC 34, etc. 8. They are Fumlan v. Slate of Georgia 408 US 238 (1972).; Noel Riley v. Attorney General 1982 Cri. L.R. 679, etc. 9. (1983) 2 SCC 68, 73. 10. The court observed: "While we entirely agree with Lord Scarman and Lord Brightman about the dehumanising effect of prolonged delay after the sentence of death, we enter a little caveat, but only that we may go further. We think that the cause of the delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanising character of the delay". Ibid. at p. 73.  Delay ill executioll : All evaluatioll of the judicial reasollillg 171 "Making all rea.sonAble allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death."n This in fact opened the Pandora's box in this area..Though it was stated that the two years of period was fixed after "mak~ng all reasonable alIowance for the tim~ necessary", the judgment was silent as to how the court concluded that the period was reasonable. It is also surprising to note that the court not only considered the time necessary for the completion of judicial proceedings but also the time necessary for the completion of executive and administrative procedures. This seems ,to be questionable inasmuch as the court in this case was not calIed upon to examine the delay caused during the disposal of clemency petition. Similarly, the court was not' supplied with any material necessary to examine the issue in detail. It is clear that the grounds involved here were the inhuman treatment given to the accused after the death sentence was passed by the Sessions Court and the delay caused in executing his sentence. The contention was based on the delay caused during judicial proceedings. The writ petition was filed while the appeal was pending before the Supreme Court. The court in fact was not exposed to the delay in execution of death sentence after the. final appeal was disposed. The inclusion of the phrase "consideration of reprieve" created much difficulty in appreciating the reasonable time taken for the disposal of the appeal. The framing of the question of law broadly without confining it to the facts of the case and the decision based on that has, in fact, created the controversy in this area. Had the court confined the decision to the facts of the case - delay and inhuman treatment during judicial proceedings - the difficulty caused could have been avoided. The court started with two issues - delay and inhuman treatment. The whole thrust of the judgment was on delay only. There was no mention as to the consideration of the inhuman treatment given to the accused. The eight years solitary confinement of the accused was against Indian Penal Code, prison rules, decision in SUlliI Batra and international conventions. Naturally this must have a serious impact on the minds of the judges while th'ey tried to formulate the outcome of the dehumanising effect of solitary confinement. But in this case the judges have absolutely failed to connect this fact with the ratio though repeatedly emphasised the dehumanising impact of delay in execution. It is therefore apparently evident that the ratio is based only upon delay. This is clear from the justification given by the court for substituting the sentence of death to life imprisonment. Justice Chinnappa Reddy observed:... [W]e find no impediment in holding that the dchum.tnising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shalI be deprived of 1L Ibid at p. 7'J. 172 National Law Scltool Joumal his life or personal liberty except according to procedure established by law. The appropriate relief in such a case is to vacate the sentence of death."12 It appears that the court expected one to believe that the court has either impliedly considered the issue of inhuman treatment in arriving at the conclusion or expressly kept the issue open since it found, in this case, undue delay sufficient to convert the sentence. Since the court quashed the death sentence of Vatheeswaran and substituted life imprisonment while disposing the writ petition along with the appeal it can be inferred that the court has considered the issue of inhuman treatment also. Though the judges seem to be justified in quashing the sentence of death and imposing life imprisonment instead, the dehumanising impact of solitary confmement specially in the contemporary legal standards has not been properly appreciated in formulating the ratio. The fact has, it appears, prepared the psyche of the judges though they have failed to articulate that argument into the judgment. The court asserted its jurisdiction to entertain the writ petition based. on the new horizon of Article 21 of the Constitution. After referring to Maneka,13 Sunil Batra,14 Bacltan Singlt,15 and other related cases, Justice O. Chinnappa Reddy observed: "Procedure established by law does not end with the pronouncement of sentence; it includes the carrying out of the sentence. That is as far as we have gone so far. It seems to us but a short step, but a step in the right direction, to hold that prolonged detention to await the execution of a sentence of death is an unjust, unfair and unreasonable p'rocedure and th~ only way to undo the wrong is to quash the sentence of death.,,16 The court is justified in asserting its jurisdiction inasmuch as the judicial proceedings were not over. The final appeal was pending and the court disposed both appeal and writ together. The difficultycreated was regarding the calculation of the period of delay. It is true that thisjudgment is only an authority for delay caused by the judiciary before the disposal of final appeal. It cannot be considered as an authority for pre-clemency and post-clemency petitions. The period fixed without considering the facts and issues properly led the Supreme Court to re-examine the issue in Slter Singlt v.State of Punjab.17 Slter Singlt depicts the second stage of delay caused in the criminal prosecution. Here the Special Leave Petition of the accused against his conviction by the High Court was dismissed in 1979 and confirmed his death sentence. Thereafter he filed many writ petitions one after another till the present petition to convert capital punishment into life imprisonment. The facts did not indicate about the clemency petition. He contended that since there was more than two years' delay in execution of his sentence, it must be converted into life imprisonment based on the r.atio in Vatlteeswaran. At the outset itself it has to be mentioned that there is a clear difference between Vatlzeeswaran and Sizer Singlt. In Vallteeswaran the court examined 12. Ibid at pp. 78-79. 13. Maneka Gandhi v. Union of India (1978) 1 see 248. 14. Sunil Batra v. Delhi Administration (1978) 4 see 494. 15. Bachan Singh v. State of Punjab (1980) 2 see 684 16. (1983) 2 see 68, 78. 17. (1983)2 see 344.  Delay in execution: An evaluation of the judicial reasoning 173 the issue along with the. appeal, whereas in Sher Singh the appeal was dismissed long back and the matter came up as a writ petition. It has already been stated that Vatheeswaran could not be considered as an authority for the delay caused after the disposal of final appeal inasmuch as it was not in issue. It is evident from the Sher Singh judgment that thjs fact was not taken care of. After examining the cases dealing with delay caused before the disposal of the fmal appeal, the court distinguished the present case and said: "The question which at1ses in such appeals is whether' the extreme penalty provided by law is called for in the circumstances of the case. The question which arises in proGeedings sucItas those before us is whether, even if the death sentence was the only appropriate sentence to impose in the case and was therefore imposed, it will be harsh and unjust to execute that sentence by reason of supervening events... ,,18 It appears that the court was of the View thllt the delay caused during judicial proceedings must be taken care of by the cou!"twhile disposing the final appeal and in petition after that the supervening events including delay caused after the final disposal alone need be considered.19 The court heavily relied on Vatlleeswaran to emphasis the dehumanising effect of delay in execution, but was reluctant to consider the dehumanismg effect of self- induced delay.20Its only disagreement with Vatheeswaran was the two years period fIXedfor granting relief. After examining the inherent difficulties in the disposal of criminal cases, the court emphatically stated that ;l. hard and fast rule of two years' delay could not be fixed.21The court did not expressly state in the judgment as to the consideration of the starting point of delay for the purpose of reconsideration of the sentence along with other circumstances. As to the nature of supervening events Chief Justice Chandrachud opined: "Finally, and that is no less important, the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its executioQ is delayed. The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years' formula, as a matter of quod erat demonstrandum.,,22 If one attempts to understand the ratio of Vatheeswaran in terms of delay in judicial proceedings and the logic of Sher Singh as that of delay 1:npre-clemency proceedings it can be safely concluded that Sher Singh has not ovenruled Vatheeswaran. The logic of willingness in reconsidering the death sentence propounded in SIler Sinf!h based UDon 18. Ibid at p. 351 (Emphasis mine). 19. Ibid at pp. 353-355. 20. Ibid at p. 356, 21, Ibid. 22. Ibid at p. 357. 174 National Law School Joumal the consideration of supervening events after post-judicial proceedings has in fact destabilized the ratio of two years period of delay in VatheeswaraIJ. Vathee$waran even after the decision of Sher Singh stands as an authority for delay caused during judicial proceedings till the final appeal. Vatheeswaran's ratio could have been limited by the Sher Singh court to the delay in execution caused during judicial proceedings. The attempt of the court to extend it to delay caused during pre-clemency,period caused more difficulty. This is so because of the scepticism regarding the power of the court to entertain such petition. The question is whether the court h~ the power to 'substitute' or 'commute' the death sentence once finally passed by the Supreme Court after consideration of all the facts and circumstances of the case including delay in a pre-clemency writ petition. It is true that the court has the powel;· to substitute the sentence in a review petition.Z3 There is no law for changing it after that. Similarly the power to 'commute' a sentence passed by a competent judiciary is ~th the executive head under Article 72 and Article 161 of the Constitution or under Code of Criminal Procedure provisions.24 Can the Supreme Court assume this function? The court justified it based on Article 21 of the Constitution. The wo;ds of Chief Justice Chandrachud are quite pertinent: "Article 21 stands like a sentinel over human misery, degradation and oppression. Its voice is the voice of justice and fairplay. 'That voice can never be silenced on the ground that the time to heed to its imperatives is long since past in the story of a trial. It reverberates through all stages - the trial, the sentence, the incarceration and finally, the execution of thesentence.,,25 After examining the new dimensions of Article 21 in prison jurisprudel1ce the court asserted: "And, last hut commuted to not the least, as w~by lifefhtprisonment have thisstated court already, death disposing either while sentence have been of special leave petitionstermination unsuccessful and appealsof or the while normal dealing processes with writ of litigation: ~etitions this filedjurisdiction after the relates to the execution of the sentence. This then is the vast sweep of Article 21.,,26 The failure on the part of Sher Singh's court to identify the ratio of Vatheeswaran correctly and the attempt made to open up a new jurisdiction to consider pre- clemency writ petitions on the ground of supervening events led to the most controversial judgment in this area. Javed Alzamed27 postulates the third stage of delay in execution of death sentence. Here the accused was sentenced to death by the Sessions Court in February 1982 and the Supreme Court, dismissed his appeal in April 1983. Tqe review petition was also dismissed in August, 1983. He filed a clemency petition and that was also rejected by the President.28 After that the present petition was filed in 1984 and was 23. See Order XL(I) of Supreme Court Rules, 1966. 24. Sections 433, 433A, 434 and 435 Code of Criminal Procedure, 1973. 25. (1983) 2 SCC 344, 354. 26. Ibid at p. 355 (Emphasis mine). 27. (1985)-1 SCC 275. 28. The judgment is silent about-the date Ithough it has given all other dates. See ibid at p. 276.  Delay in execution: An evaluation of the judicial reasoning 175 decided in November 1984. The court was called upon to consider his tender age, his reformation in jail, delay of more than two years in execution of death sentence and his atonement of the crime to convert his death into life imprisonment. Justice Chinnappa Reddy responded: "In the present case we are satisfied that an overall view of the circumstances appears to us to entitle the petitioner to invoke the protection of Article 21 of the Constitution. We accordingly quash the sentence of death and substitute in its place the sentence of imprisonment for Iife."29 It is quite interesting to examine the reasoning of the judge in this regard. It was Justice Chinnappa Reddy who in Vatheeswaran categorically stated that two years delay from the date of the Sessions Court judgment alone was sufficient to give relief. It appears that Justic£ Chinnappa Reddy found it difficult to dispose off the case based on delay alone though it came within the period prescribed in Vatheeswaran. If Vatheeswaran is an authority for delay caused during judicial proceedings, Javed could not claim the benefit since his case was finally disposed off by the Supreme Court within the period. This seems to be the reason why Justice Chinnappa Reddy took other circumstances into consideration which he left open in Vatheeswaran to dispose the case. On a plain reading of the case it is quite clear that the attempt was to criticise the Sher Singh court. After quoting many passages from Vatheeswaran and Sher Singh, the court concluded without discussing the issues. The court did not make clear its reaction towards Vatheeswaran and Sher Singh though it seemed to have followed both. Nor has any explanation as to the jurisdiction of the court in post-clemency petition been given. There is a clear distinction between Javed, Sher Singh and Vatheeswaran. Neither the ratio of Vatheeswaran nor the logic of Sher Singh could be utilized for disposing Javed's petition inasmuch as they dealt with matters before the clemency petition. After criticising Sher Singh court for considering supervening circumstances Justice Chinnappa Reddy took the intervening circumstance, in Javed's case to dispose it off. This, it is submitted is a wrong approach in judicial process. The failure of the court to consider the ratio of the previous cases correctly led to the creation of bad precedents in this area. Over activism often creates confusion in articulating the apparent logic of a decision. The above analysis of these decisions highlights the following uncertainties. It is clear that the judges are unanimous in considering the inordinate delay in execution. But it is difficult to find out from where it starts and what is the period. While Vatheeswaran stood for the delay' in judicial proceedings for a period of two years including the period of self-induced delay and remission, Sher Singh excluded the two years period, and delay in judicial proceedings but wanted to consider the supervening events including delay caused after the disposal of the final appeal and review petition. Sher Singh also excluded the delay caused by the prisoner himself. These two cases could not be considered to be the authority for delay caused during the clemency petition. Javed, a post-clemency petition, considered judicial and executive delay and 29. Ibid at p. 283. (Emphasis mine). 176 National Law School JOllmal other circumstances relevant. Leaving aside the jurisdiction of the court to entertain the writ petition at different stages, if we take Sher Singh, it is an authority for delay caused after the disposal of final appeal and circumstances attendant thereto. If we take Vatheeswaran and Ja~'ed together the starting point of delay is from Sessions Court and it ends when clemency petition is disposed off. Delay of more than two years along with other circumstances is sufficient to attract the court's attention.30 This unsatisfactory position of law was again considered by the Full Bench of the Supreme Court in Trivenibell.31 In Triveniben the court examined the issue in a bunch of post-clemency petitions. At the outset it has to be pointed out that the major chunk of the judgment was devoted for the discussion of the constitutionality of death penalty rather than on issues regarding delay. The court examined four issues,- (a) delay, (b) starting point of the delay, (c) rights of-the condemned prisoner, and (d) circumstances of the case. While recognising the dehumanising effect of delay caused in execution of the sentence the court refused to consider the delay caused during judicial proceedings as a ground in writ petitions. The court has two justifications for this. Firstly, relying on previous cases it said that the time taken by the courts for the disposal of the case finally was for ensuring free and fair trial. The delay thus caused could be taken care of by the final court while disposing the case.32 Secondly the court said that the mental torture could not be assumed till the final disposal of the case since the prisoner has a ray of hope so long as the matter was pending. Justice Oza ohserved: "... [B]ut it could not be doubted that so long as the matter is pending in any court before final adjudication even the person who has been condemned or who has· been sentenced to death has· a ray of hope. It therefore could ~ot be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the doomsday."33 It app~ars that to this extent the law laid down in Vatheeswaran stands affirmed. The Appellate Court can consider the delay caused during judicial proceedings along with other circumstances to substitute death sentence with life imprisonment. It was observed by Justice Oza that the time :.pent on petitions for review and 30. )be court alsGlraised the issue whether judges cjln overrule the decision given by,two judges. 31. (1989) 1 see 678. The' accused Persons were convicted.under section 302, IPe, and sentenced to death by trial court. The High (:PUrt·cotifinnec1-theirconviction and sentence. The Supreme Court dismissed their special l~ve' petilions or appeals and subsequent review petitions. Their mercy petitions were also rejc;c,ted.Hence the writ petition under Article 32 of the Constitution bi!5ed on delay. 32. (1989) 1 see 678, pp. 693, 697, 712, 713. 33. Ibid ai p. 694.  Delay ill- execution: An evaluation of the judicial reasoning 177 repeated mercy petitions at the instance of the prisoner should not be considered.34 The court added that if the petitions were filed to claim his legitimate rights it would be proper for the tourt to consider the prolonged delay out of this.3S Thus it is clear that the self-induced delay that has been considered genuine by Vatheeswaran court has been negatived. At the sal11e time petitions as accepted by Sher Singh's ,Court could be entertained if the delay caused by review petition, etc. was genuine. It is not possible to understand why the Supreme Court asserted this right. The logic applied by the court in the case of judicial delay could have been applied here also. While disposing the review petition or any other petition, the court is bound to consider the delay caused in disposing of the petition. If the court feels ttiat there is no ground for converting the death sentence in those petitions bow can it do in a writ petition? It appears that this is an unnecessary recognition of right which will create difficulties in future. Similarly, the court was silent about the consideration of supervening circumstances which Sher Singh court considered necessary. This makes it clear that Sher Singh's logic stands unaltered even now. But this conclusion by the majority judges was not accepted by Justice Jagannatha Shetty. This is clear from his observations: "If the delay in passing the sentence cannot render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional. Much less any fIXed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fIX any period of limitation for execution on the ground that it would be a denial of fairness in procedure under Article 21.,,36 According to him the only delay that could be considered was the delay caused by the executive in the exercise of its prerogative clemency.37 The most interesting part of the judgment is the curiosity shown by the court to consider the inordinate delay caused dpring the executive consideration of the petitio- ner's claim. The court categorically stated that the delay that could be considered in post~clemency petitions was the delay cau,Sed during the disposal of the clemency petition. Though the court was reluctant to fix any definite period of time, it was observed that inordinate delay caused along with otha circumstances should be considered to convert his capital punishment into life imprisonment. The court unanimously opined:- "Undue long delay in execution of the sentence of death will entitle condemned person to approach this court under Article 32 but this court wiJI only examine the nature of delay caused and circumstances ensued after sentenc.~ was finally confirmed by the judicial process and will have no jurisdiction to re-open 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 34. Ibid. 35. Ibid. 36. Ibid at p. 713. 37. Ibid al pp. 714-715. 178 National Law School JOllmal 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 decision in Vatheeswaran's case cannot be said to lay down the correct law and therefore to that extent stands overruled."38 Justice Oza has not given any specifIc reason for this enquiry. If this enquiry is because of the dehumanising effect of delay, this can be considered by the executive head while disposing the petition just like the Supreme Court considering the delay caused during the judicial proceedings. The court negatived the dehumanising effect of delay during judicial proceedings inasmuch 'as there was always a 'ray of hope' when appeal was preferred. The same analogy could have been taken here also though there is a difference between judicial and executive proceedings. Prisoners approach the executive only with the 'ray of hope' of commuting the death penalty. As per Kehar Singh39 it is the law that President has the power under Article 72 to examine the case afresh and is not bound by the fInal conclusions of the highest court of the land.40 According to Justice Jagannatha Shetty "the mental torment may become acute when the judicial verdict is fInally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is extinguished after the fInal verdict.',41If the court cannot attribute dehumanising effect of delay in judicial proceedings it, is difficult to understand how it is possible in executive proceedings. It cannot be gainsaid that the President has the power to completely exonerate the convict. Similarly if delay caused during judicial proceedings could be taken care of by the judiciary there is no reason to believe why the delay caused during executive proceedings could not be taken care of by the executive head. How can the Supreme Court say in a post-clemency petition that the executive head has not taken care of the delay in rejecting the clemency petition? Does not such an enquiry by the Supreme Court amount to judicial review of Presidential Power? It would have been better in the fItness of. things, had the Supreme Court suggested for the consideration of the delay, if any, caused during clemency petition while taking final decision by the executive head. In this context it is worth examining the power of the court to review the decisions taken by the executive head on one reason or other. The Supreme Court for the fIrst time examined the jurisdiction of the court to examine post-clemency petitions in G. Krishta GOlld v. State of Andhra Pradesh.42 Regarding the constitutional power of the President, Justice V.R. Krishna Iyer observed: "A constitutional order built on the founding faith of the rule of law may posit wide power in high functionaries and validly exclude judge-power from eating these forbidden fruits.',43 ' 38. Ibid at p. 698. 39. Kehar Singh v. Union of India (1989) 1 see 204. 40. Ibid at pp. 212-213. 41. (1989)1 see 678. 42. (1976)1 see 157. 43. Ibid at p. 159  Delay in execution: An evaluation of the judicial reasoning 179 As to the power and limitation of the Supreme Court, Justice Iyer was emphatic: "The court cannot intervene anywhere as an omniscient, omnipotent or omnipresent being. And when the Constitution, as here, has empowered the nation's highest executive, excluding, by implication, judicial review, it is' officious encroachment, at once procedurally ultra vires and upsetting comity of high instrumentalities for this court to be a super power unlimited:r44 But at the same time as a note of caution the Court opined: "Absolute, arbitrary, law-unto-oneself mala fide execution of public power, if gruesomely established, the Supreme Court may not be silent or impotent:045 The court in this case refused to re-consider the death sentence on the ground of delay in execution. Justice Iyer again in Mant Ram v. Union of India46 clarified the power of the court and observed: "Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise:047 Here the court refused to lay down guidelines for the exercise of the power under Articles 72 and 161 but advised the executive to do it. The Supreme Court went a step further in Sher Singh. The court went to the extent of directing the executive to follow some guidelines. Expressing the dissatisfaction in causing undue delay in the disposal of clemency petition as obiter Chief Justice Chandrachud observed: "A self-imposed rule should be followed by the executive authorities rigorously that every such petition shall be disposed of within a period of three months from the date on which it is received:048 It is to be noted here that MOnt Ram and Sher Singh were not post-clemency petitions. Nor the court has interfered with the power of the executive or reviewed the decisions. But the court in Javed in fact reviewed the decision of the President on the ground of delay and substituted the death sentence into life imprisonment. It is not clear from the judgment as to how much delay was caused by the executive. The court did not examine its power to re-consider the order' of the Preside'nt on the ground of delay. The court relied on the observations in Vatheeswaran and Sher Singh based on Article 21 to justify the stand. It is quite doubtful whether these judgments could be 44. Ibid at p. 160. 45. Ibid at p. 161. 46. (1981) 1 see 107. 47. £bid at p. 154. 48. (1983) 2 see 344, 358. 180 National Law School JOllmal taken as correct precedents inasmuch as they dealt with pre-clemency matters. Facts of Javed also did not warrant an examination of the delay or circumstances since it was not done arbitrarily or capriciously. The court again in Triveniben said that it has the power to examine the delay caused during clemency-petition and reversed the decision of the President. Here also the Court has not given the reason for the exercise of the review power. If one looks back to Krishta Goud regarding the consideration. of the delay caused, the court was very clear about the jurisdiction and modalities. The words of Justice Iyer are pertinent: "[T]he circumstance that the Damocles' sword of death sentence had been hanging over the head of the convicts four around for years and like factors may, perhaps, be urged before the President... these great facts cannot deflect us from our constitutional duty not to interfere where we have no jurisdiction."49 It is clear from the above discussion that the courts' power in this area is highly restricted. This was recognised by the Constitution Bench of the Supreme Court in Kehar Singh. Chief Justice Pathak, as obiter, observed: "Indeed, we think that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Mant Ram v. Union of India. ,,so In these circumstances it is strongly felt that the examination of the delay caused during clemency period along with all other relevant circumstances by the Supreme Court after the President has rejected the clemency petition, amounts to judicial.review on its merits. Triveniben did not reveal whether the case fell under the limitations in Mant Ram. If the President considers the delay while rejecting the petition, there is no question of arbitrary exercise of power. Triveniben was decided before Kehar Singh. In the light of Mont Ram and KeharSingh it is doubtful whether Triveniben could be considered to be good law. The whole discussion leads to confusion rather than to a solid conclusion. The growth of contemporary human rights jurisprudence specially the intensive campaign of Amnesty International against death Pl?naItyhas an impact in the highest echelon of the Indian judiciary. There has been a considerable expansion of the scope of Article 21 of the Constitution in order to comprehend such contemporary human rights logic in mitigating the repression of death sentence. This, it appears, they are trying to achieve indirectly through "delayjurisprudence". * * * * 49. (1976) 1 see 157, 161. SO. (1989) 1 see 205, 214.