TaxTMI 
TaxTMI 
TaxTMI 
1983 (2) TMI 321
X X X X Extracts X X X X
X X X X Extracts X X X X
....ontrary to our ruling in Sunil Batra v. Delhi Administration ([1979] 1 S.C.R. 392). Before that he was a 'prisoner under remand' for two years. So, the prisoner claims that to take away his life after keeping him in jail for ten years, eight of which in illegal solitary confinement, is a gross violation o the Fundamental Right guaranteed by Art. 21 Of the Constitution. Let us examine his claim. First let us get rid of the cobwebs of prejudice Sure, the murders were wicked and diabolic. The appellant and his friends showed no mercy to their victims. Why should any mercy be shown to them? But, gently, we must remind ourselves it is not Shylock's pound of flesh that are seek, nor a chilling of the human spirit. It is justice to the killer too and not justice untempered by mercy that we dispense. Of course, we cannot refuse to pass the sentence of death where the circumstances cry for it. But, the question is whether in a case where after the sentence of death is given, the accused person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to suffer the most excruciating agony and anguish, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death". In Noel Riley and Ors. v. The Attorney General and Another ([1982] Crl. Law Review 679) the majority of the Lords of the Judicial Committee of the Privy Council expressed no opinion on the question whether the delayed execution of a sentence of death by hanging could be described as "inhuman or degrading punishment". But Lord Scarman and Lord Brightman who gave the minority opinion, after referring. to the British practice and Furman v. State of Georgia, People v. Chessman, People v. Anderson, Ediga Anamma v. State of Andhra Pradesh, Rajendra Prasad v. State of U.P. and Tyrer v. United Kingdom, said: "It is no exaggeration, therefore, to say that the jurisprudence of the civilised world, much of which is derived from common law principles and the prohibition against cruel and unusual punishment in the English Bill of Rights, has recognised and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degradi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t once to Art. 21 of the Constitution, for, it is to that article that we must first look for protection whenever life or liberty is threatened. Art. 21 says: "No person shall be deprived of his life or personal liberty except according to procedure established by law." The dimensions of Art. 21 which at one time appeared to be constricted by A.R. Gopalan v. State of Madras(1) have been truly expanded by Maneka Gandhi v. Union of India ([1978] 2 S.C.R. 621) and Sunil Batra etc. v. Delhi Administration.( [1979] 1 S.C.R. 392) In Maneka Gandhi v. Union of India(2), it was held that the various articles of the Constitution in Chapter III (Fundamental Rights) were not several, isolated walled fortresses, each not reacting on the other, but, on the other hand, were parts of a great scheme to secure certain basic rights to the citizens of the country, each article designed to expand but never to curtail the content of the right secured by the other article. No article was a complete code in itself and several of the Fundamental Rights guaranteed by Chapter Ill of the Constitution overlapped each other. So, a law satisfying the requirements of Art. 21 would still have to meet the challenge....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nbsp; "True our Constitution has no 'due process' clause or the VIII Amendment; but, in this branch of law, after Cooper and Maneka Gandhi, the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by " Arts. 14 and 19 and if inflicted with procedural unfairness, falls foul of Art. 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner's shrunken fundamental rights, if flouted, frowned upon or frozen by the prison D authority. Is a person under death sentence or under trial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Art. 19) become chimerical constitutional claptrap." In the same case, Desai, J. said: "The word "law" in the expression "procedure established by law" in Art. 21 has been inter....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "Thus expanded and read for interpretative purposes, Art. 21 clearly brings out the implication, that the Founding Fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law". The question whether a prisoner under a lawful sentence of A'. death or imprisonment could claim Fundamental Rights was considered in Bhuvan Mohan Patnaik v. State of A.P.( [1975] 2 S.C.R. 24). Chandrachud, J. (as he then was) declared: "Convicts are not, by mere reason of the conviction. denuded of all the Fundamental Rights which they other-wise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Art. 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21." In Hussainara Khatoon (IV) v. Home Secretary ([1980] 1 S.C.C. 98), the principle was re-affirmed and Bhagwati, J. added: "Speedy trial is, as held by us in our earlier judgment dated February 26, 1979, an essential ingredient of 'reasonable, fair and just' procedure guaranteed by Art. 21 and it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial to the accused." In the same case, it was further observed that the right to free legal services was implicit in Art. 21 as no procedure could be said to be reasonable, fair and just which did not provi....