O. Chinnappareddy, J.
1. 'To be or not to be', is die question which Javed AHMED Abdul Hamid Pawala has posed us. In connection with certain cruel and multiple murders the petitioner was convicted and sentenced to death by the learned Sessions Judge of Thane, on 6-2-1981 The High curt of Maharashtra confirmed die sentence of death on 29/30-4-1981 An appeal preferred by the petitioner to this Court under Article 136 of me Constitution was dismissed by us on 20-4-1983. (Reported in : AIR1983SC594 ). The petition for review was dismissed on 12-8-1983. A petition for clemency was also rejected by the President of India. The petitioner has filed the present writ petition under Article 32 of the Constitution praying that in view of his tender age, his reformation in jail and the long lapse of time since die passing of the sentence of death on him, the execution of the sentence of death may be stopped and the sentence may be commuted to one of imprisonment for life. In his petition he has frankly confessed to the dastardly crimes committed by him. He has stated that he now realises the enormity of what he has done and wants to atone and make good the injury inflicted upon society by him by striving to serve humanity if given a chance to do so. Moved by the apparent ring of sincerity in the sentiments expressed by the petitioner in his petition, one of us (E. S. Venkataramiah, J.) admitted the petition and later it has been directed by the Court that the petition should be heard by a Bench consisting of the two of us. On 14-9-1984 we called for a report from the Superintendent, Yeravada Central Prison, Pune to report about the conduct and behaviour of the prisoner during the period of his incarceration. The report of the Superintendent. Central Jail is to the effect that ,so far nothing adverse to the petitioner has came to the notice of the authority. The question therefore is what is to be done in the circumstances. The petitioner is an young man aged about 22 years. He appears to be genuinely repentant and he now desires to at one for the grievous wrong that has been done by him. The repentance and the desire appear to be sincere as far as we are able to judge. The jail authority has no adverse comment to make against his conduct The sentence of death has now been hanging over his head for two years and nine months.
2. In T.V. Vatheeswaran v. Stele of Tamil Nadu : 1983CriLJ481 H21a Division Bench of this Court consisting of one of us and R. B,, Misra, J. considered at length the question whether delay in the execution of the sentence of death was sufficient to entitle the person under the sentence of death to invoke Article 21 of the Constitution. In opining that a delay exceeding two years would so entitle the prisoner, we first observed (Para f):
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 we 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 accursed 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, is it not open to a court of appeal or a court exercising writ jurisdiction, in an appropriate proceeding to take note of the circumstance when it is brought to its notice and give relief where necessary.
After referring to Ediga Anamma : 1974CriLJ683 , Lalla Singh : 1978CriLJ359 , Bhagwan Bux Singh : 1978CriLJ153 , Sadhu Singh : AIR1978SC1506 and Sahai : 1981CriLJ1034 , we proceeded to quote Justice Bremen's observation in Furman v. Slate of Georgia (1972) 408 US 238, where he had said :
The prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.
We then referred to the minority opinion of Lord Scarman and Lord Brightman in Noel Riley v. Attorney General 1982 Cri LR 679, where they had 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 punishments in the English Bill of Rights has recognised and acknowledged that prolonged delay in executing a sentence of death can make the punishments in the English Bil of Rights has recognised and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading . As the Supreme Court of California commented in Anderson case, (1972) 6 Cal 628, it is cruel and has determining effects. Sentence of death is (sic) sentence of death is legally imprisonment prior to execution is (sic).
It is of course true that a period of anguish and suffering is an inevitable consequence of sentence of death. But a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not And it is no answer to say that the man will struggle to stay alive. In truth, it is this ineradicable human desire which makes prolongation inhuman and degrading. The anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional, and physical integrity and health of the individual are vividly described in the evidence of the effect of the delay in the circumstances of these five cases. We need not rehearse the facts, which are not in dispute. We do not doubt that the appellants have proved that they have been subjected to a cruel and dehumanising experience....
Prolonged delay when it arises, from factors outside the control of the condemned man can render a decision to carry out the sentence of death an inhuman and degrading punishment It is, of course, for the applicant for constitutional protection to show that the delay was inordinate, arose from no act of his, and was likely to cause such acute suffering that the infliction of the death penalty would be in the circumstances which had arisen inhuman or degrading. Such a case has been established, in our view, by these appellants.
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 is immaterial when the sentence is death. Be the cause for 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.
Thereafter we proceeded to consider the implications of Article 21 in the light of Menaka Gandhi : 2SCR621 , Sunil Batra : 1978CriLJ1741 . Bachan Singh : 1980CriLJ636 , Bhuvan Mohan Patnaik AIR 1974 SC 1092, Prabhnkar Pandurang Sanzgiri : 1966CriLJ311 , Champalal Plmjaji Shah : 1981CriLJ1273 , Hussian Khatoon : 1979CriLJ1036 and M.H. Hoskot : 1978CriLJ1678 , We then said:
So, what do we have now? Articles 14, 19 and 21 are not mutually exclusive. They sustain, strengthen and nourish each other. They are available to prisoners as well as free men. Prison walls do not keep out Fundamental Rights. A person under sentence of death may also claim Fundamental Rights. The fiat of Article 21, as explained, is that any procedure which deprives a person of his life or liberty must be just, fair and reasonable. Just, fair and reasonable procedure implies a right to free legal services where he cannot avail them, It implies a right to a speedy trial. It implies humane conditions of detention, preventive or punitive. 'Procedure established by law' does not end with the pronouncement of sentence; it includes the carrying out of 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 procedure and the only way to undo the wrong is to quash the sentence of death. In the United States of America where the right to a speedy trial is a Constitutionally guaranteed right, the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment or the vacation of the sentence vide Strunk v. United States [1973) 37 LEd. 56. Analogy of American law is not permissible, but interpreting our Constitution sui generis, as we are bound to do, we find no impediment in holding that the dehumanising 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 shall be deprived of 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.
We proceeded to consider what delay could foe considered prolonged enough to attract the Constitutional protection of Article 21. We thought that making all reasonable allowance (or the time necessary for appeal and consideration of reprieve, 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 of the Constitution and demand the quashing of the sentence of death.
3. Very shortly after the Court had pronounced its judgment, in Vatheeswaran's case : 1983CriLJ693 , in Sher Singh v. Slate of Punjab : 2SCR582 , another Division Bench of three learned Judges of this Court presided over by Chandrachud, C. J. while expressing almost complete agreement with most of what had been said in Vatheeswaran's case dissented from the opinion expressed therein that a delay of two years and more was sufficient to entitle a person under sentence of death to invoke Article 21 of the Constitution. The learned Judges first observed Para 11 of : 2SCR582 ;-
But we must hasten to add that this Court has not taken the narrow view that the jurisdiction to interfere with a death sentence can be exercised only in an appeal against the judgment of conviction and sentence. The question which a rises 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 proceedings such as 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. In very recent times, the sentence of death has been commuted to life imprisonment by this Court in quite a few cases for the reason, inter alia, that the prisoner was under the specter of the sentence of death for an unduly long time after the final confirmation of that sentence, consequent upon the dismissal of the prisoner's Special Leave Petition or Appeal by this Court. Traditionally, subsequent events are taken into account in the area of civil law. There is no reason why they should not receive due consideration in other jurisdictions, particularly when their relevance on the implementation or execution of judicial verdicts is undeniable. Undoubtedly, principles analogous to res judicata govern all judicial proceedings but when new situation semerge, particularly factual, after a verdict has assumed finality in the course of the hierarchical process, advertence to those situations is not barred on the ground that a final decision has been rendered already. That final decision is not a decision on new facts. Courts are never powerless to do justice, that is say, to ensure that the processes of law do not result in undue misery, suffering or hardship. That is why, even after the final seal of approval is placed upon a sentence of death, this Court has exercised its power to direct, ex debito justitiae, that though the sentence was justified when passed, its execution, in the circumstances of the case, is not justified by reason of the unduly long time which has elapsed since the confirmation of that sentence by this Court. Some of us dealing with this case have been parties to decisions directing inappropriate cases, that the death sentence shall not be executed by reason of supervening circumstances.
They then proceeded to agree with our agreement with the view expressed by Lord Scarman and Lord Brightman. They said :
Like our learned Brethren, we too consider that the view expressed in this behalf by Lord Scarman and Lord Brightman in the Privy Council decision of Noel Riley, 1982 Cri LR 679 is, with respect, correct. The majority in that case did not pronounce upon this matter. The minority expressed the opinion that the jurisprudence of the civilized world has recognized and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading. Sentence of death is one thing; sentence of death followed by lengthy imprisonment prior to execution is another. The prolonged anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional and physical integrity and health of the individual can*render the decision to execute the sentence of death an inhuman and degrading punishment in the circumstances of a given case.
After referring the Robert Johnson's 'Condemned to die, life under sentence of death', they observed :
A prisoner who has experienced living death for years on end is therefore entitled to invoke the jurisdiction of this Court for examining the question whether, after all the agony and torment he has been subjected to, it is just and fair to a How the sentence of death to be executed. That is the true implication of Article 21 of the Constitution and to that extent, we express our broad and respectful agreement with our learned Brethren in their visualisation of the meaning of that article. The horizons of Article 21 are even widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty und endeavour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at Me stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable. It is well established that a prisoner cannot be tortured or subjected to unfair or inhuman treatment (See Prabhnkar Pandurang Sanzgiri : 1966CriLJ311 , Bhuvan Mohan Patnaik : 1975CriLJ556 and Sunil Batra : 1978CriLJ1741 . It is a logical extension of the self-same principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust or unfair. Article 21 stands like a sentinel over human misery, degradation and oppression. Its voice is the voice of justice and fair play. 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 ail stages-the trial, the sentence, the incarceration and finally, the execution of the sentence.
4. After saying so much, the learned judges found it impossible to agree with that part of the judgment in T. V. Vatheeswaran v. State of Tamil Nadu : 1983CriLJ693 (supra), where it had been said that delay exceeding two years in executing a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art, 21 and demand the quashing of the sentence of death. The reason was, they said 'The fixation of time limit of two years does not seem to us to accord with the common experience of the time normally consumed by the litigative process and the proceedings before the executive.' They also said that besides delay mere were also other factors to be taken into account while considering the question whether the sentence of death should be vacated. The observations of the learned judges purporting to dissent from the view taken in Vatheeswaran's case were made, curiously enough, while admitting Sher Singh's petition oh other grounds. It was perhaps, thought desirable and necessary to express firmly their views on one of the questions raised which they were not accepting while admitting the petition on other questions lest further damage be done to the cause of justice by following the wrong rule thought to have been laid down in Vatheeswaran's case and unworthy people saved from the gallows. We do not wish to dwell any further on this aspect of the matter except to point out that as far as we know Referred Trials and Confirmations cases are dealt with speedily by High Courts and are never kept pending longer than two or three months. It is only when they reach this Court that the delay occurs. But surely, our inability to devise a procedure to deal expeditiously with such matters of life and death can be no justification for silencing what the learned Chief Justice has himself so eloquently described as 'the voice of justice and fair play which demands that 'so long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation.' The case also raises the further question whether a Division Bench of three Judges can purport to overrule the judgment of a Division Bench, of two judges merely because three is larger than two. The Court sits in Divisions of two and three judges for the sake of convenience and it may be inappropriate for a Division Bench of three judges to purport to overrule the decision of a Division Bench of two Judges. Vide Young v. Bristol Aeroplane Co. Ltd. (1944) 2 AH ER 293. It may be otherwise where a Full Bench or a Constitution Bench does so. We do not however desire to embark upon this question in this case. In the pre7sent case we are satisfied that an overall view of all the circumstances appears to us to entitle the petitioner to invoke the protection of Article 21 of me Constitution. We accordingly quash the sentence of death and substitute in its place the sentence of imprisonment for life.