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It is settled law that executive action and the legal procedure adopted to deprive a person of his life or personal liberty must be fair, just and reasonable and the protection of Article 21 of the Constitution of India inheres in every person, even death row prisoners, till the very last breath of their lives. But there has been conflict of opinion on commutation of death sentence upon unexpected inordinate delay in execution of death sentence.
In T.V. Vatheeswaran’s Case a two Judge Bench of Supreme Court considered whether the accused, who was convicted for an offence of murder and sentenced to death, kept in solitary confinement for about 8 years was entitled to commutation of death sentence. It was held 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. But a three judges Bench in Sher Singh v. State of Punjabit was held that though prolonged delay in the execution of death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed, no hard and fast rule 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.” Can be laid down as has been done in Vatheeswaran Case. Javed Ahmed v. State of Maharashtra,reiterated the proposition laid down in Vatheeswaran Case and doubted the competence of the three judge bench to overrule Vatheeswaran Case. in Mohd. Arif @ Ashfaq v. The Reg. Supreme Court of India,where the Supreme Court held that time taken in Court proceeding cannot be taken into account to say that there is a delay which would convert a death sentence into one for life. Equally, spending 13 ½ years in jail does not mean that the Petitioner has undergone a sentence for life.
Finally the case over the said question was settled in Shatrughan Chauhan v. Union of India,where the Supreme Court laid various guidelines so as to protect the legal right of the prisoner. However, in regard to the said question, it was held that “exercising of power under Article 72/161 by the President or the governor is a constitutional obligation and not a mere prerogative. Considering the high status of the office, the constitutional framers did not stipulate any outer time limit for disposing the mercy petitions under said Articles, which means it should be decided within reasonable time. However, when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider the aspect. Right to seek for mercy under Article 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Every constitutional duty must be fulfilled with due care and diligence otherwise judicial interference is the command of the Constitution for upholding its values. Remember, retribution has no Constitutional value in our largest democratic country. In India, even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same. Therefore, we make it clear that when the judiciary interferes in such matters, it does not really interfere with the power exercised under Article 72/161 but only to uphold the de facto protection provided by the Constitution to every convict including death convict.
In V. Sriharan @ Murugan v. Union of India,the Supreme Court reiterated that the clemency procedure under Article 72/161 provides a ray of hope to the condemned prisoners and his family members for commutation of death sentence into life imprisonment and, therefore, the executive should step up and exercise its time honoured tradition of clemency power of guaranteed in the constitution one way or the other within a reasonable time. Profuse deliberation on the nature of power under Article 72/161 of the Constitution has already been said in Shatrudhan Chauhan.
 Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1
 AIR 1983 SC 361
 K.P. Mohammed v. State of Kerala, (1985) 1 SCC (Cri) 142
 (1983) 2 SCC 344
 (1985) 1 SCC 275
 (2014) 9 SCC 737
 (2014) 3 SCC 1
 (2014) 4 SCC 242