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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) D.NO. 16039 OF 2011
Devender Pal Singh Bhullar …Petitioner
versus
State of N.C.T. of Delhi ...Respondent
WITH
WRIT PETITION (CRIMINAL) No. 146 OF 2011
AND
WRIT PETITION (CRIMINAL) No. 86 OF 2011
J U D G M E N T
G. S. SINGHVI, J.
1. Human life is perhaps the most precious gift of the nature, which many
describe as the Almighty. This is the reason why it is argued that if you cannot
give life, you do not have the right to take it. Many believe that capital
punishment should not be imposed irrespective of the nature and magnitude of
the crime. Others think that death penalty operates as a strong deterrent
against heinous crimes and there is nothing wrong in legislative prescription ofPage 2
the same as one of the punishments. The debate on this issue became more
intense in the second part of the 20th century and those belonging to the first
school of thought succeeded in convincing the governments of about 140
countries to abolish death penalty.
2. In India, death was prescribed as one of the punishments in the Indian
Penal Code, 1860 (IPC) and the same was retained after independence.
However, keeping in view the old adage that man should be merciful to all
living creatures, the framers of the Constitution enacted Articles 72 and 161
under which the President or the Governor, as the case may be, can grant
pardons, reprieves, respites or remission of punishment or suspend, remit or
commute the sentence of any person convicted of any offence and as will be
seen hereinafter, the President has exercised power under Article 72 in large
number of cases for commutation of death sentence into life imprisonment
except when the accused was found guilty of committing gruesome and/or
socially abhorrent crime.
3. The campaign for the abolition of capital punishment led to the
introduction of a Bill in the Lok Sabha in 1956 but the same was rejected on
23.11.1956. After two years, a similar resolution was introduced in the Rajya
Sabha but, after considerable debate, the same was withdrawn. Another
attempt was made in this regard in 1961 but the resolution moved in the Rajya
Sabha was rejected in 1962. Notwithstanding these reversals, the votaries of
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‘no capital punishment’ persisted with their demand. The Law Commission of
India examined the issue from various angles and recommended that death
penalty should be retained in the statute book. This is evinced from the 35th
Report of the Law Commission, the relevant portions of which are extracted
below:
“The issue of abolition or retention has to be decided on a
balancing of the various arguments for and against retention. No
single argument for abolition or retention can decide the issue. In
arriving at any conclusion on the subject, the need for protecting
society in general and individual human beings must be borne in
mind.
It is difficult to rule out the validity of, or the strength behind,
many of the arguments for abolition nor does, the commission
treat lightly the argument based on the irrevocability of the
sentence of death, the need for a modern approach, the severity
of capital punishment and the strong feeling shown by certain
sections of public opinion in stressing deeper questions of human
values.
Having regard, however, to the conditions in India, to the variety
of the social upbringing of its inhabitants, to the disparity in the
level of morality and education in the country, to the vastness of
its area, to diversity of its population and to the paramount need
for maintaining law and order in the country at the present
juncture, India cannot risk the experiment of abolition of capital
punishment.”
4. The constitutionality of capital punishment was examined by the
Constitution Bench in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20. The
facts of that case were that appellant Jagmohan Singh was convicted for the
murder of Chhote Singh and was sentenced to death by the trial Court. The
High Court confirmed the death sentence. Before this Court, the counsel for
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the appellant relied upon the judgment of the U.S. Supreme Court in Furman v.
State of Georgia, 408 US 238 and argued that death penalty was per se
unconstitutional. This Court distinguished that judgment by observing that
even though the sentence of death was set aside by a majority of 5:4, only two
of the five Judges, namely, Mr. Justice Brennan and Mr. Justice Marshall were
of the opinion that in view of Eighth Amendment to the American Constitution,
which forbade ‘cruel and unusual punishments’, the imposition of death
penalty was unwarranted and the opinion of the third Judge, namely, Mr.
Justice Douglas could not be read as advocating total abolition of capital
punishment. The Constitution Bench then observed:
“So far as we are concerned in this country, we do not have, in
our constitution any provision like the Eighth Amendment nor
are we at liberty to apply the test of reasonableness with the
freedom with which the Judges of the Supreme Court of
America are accustomed to apply “the due process” clause.
Indeed what is cruel and unusual may, in conceivable
circumstances, be regarded as unreasonable. But when we are
dealing with punishments for crimes as prescribed by law we are
confronted with a serious problem. Not a few are found to hold
that life imprisonment, especially, as it is understood in USA is
cruel. On the other hand, capital punishment cannot be described
as unusual because that kind of punishment has been with us
from ancient times right up to the present day though the number
of offences for which it can be imposed has continuously
dwindled. The framers of our Constitution were well aware of
the existence of capital punishment as a permissible punishment
under the law. For example, Article 72(1)(c) provides that the
President shall have power to grant pardons, reprieves, respites
or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence “in all cases
where the sentence is a sentence of death”. Article 72(3) further
provides that “nothing in sub-clause (c) of clause (1) shall affect
the power to suspend, remit or commute a sentence of death
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exercisable by the Governor of a State under any law for the
time being in force”. The obvious reference is to Sections 401
and 402 of the Criminal Procedure Code. Then again Entries 1
and 2 in List III of the Seventh Schedule refer to Criminal Law
and Criminal Procedure. In Entry No. 1 the entry Criminal Law
is extended by specifically including therein “all matters
included in the Indian Penal Code at the commencement of this
Constitution”. All matters not only referred to offences but also
punishments—one of which is the death sentence. Article 134
gives a right of appeal to the Supreme Court where the High
Court reverses an order of acquittal and sentences a person to
death. All these provisions clearly go to show that the
Constitution-makers had recognised the death sentence as a
permissible punishment and had made constitutional provisions
for appeal, reprieve and the like. But more important than these
provisions in the Constitution is Article 21 which provides that
no person shall be deprived of his life except according to
procedure established by law. The implication is very clear.
Deprivation of life is constitutionally permissible if that is done
according to procedure established by law. In the face of these
indications of constitutional postulates it will be very difficult to
hold that capital sentence was regarded per se unreasonable or
not in the public interest.”
(emphasis supplied)
5. The constitutional validity of Section 302 IPC, which prescribes death
as one of the punishments, was considered by the Constitution Bench in
Bachan Singh v. State of Punjab (1980) 2 SCC 684. By a majority of 4:1, the
Constitution Bench declared that Section 302 IPC was constitutionally valid.
Speaking for the majority, Sarkaria, J. referred to the judgments of several
countries, including India, opinions of Jurists and recorded his conclusion in
the following words:
“To sum up, the question whether or not death penalty serves
any penological purpose is a difficult, complex and intractable
issue. It has evoked strong, divergent views. For the purpose of
testing the constitutionality of the impugned provision as to
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death penalty in Section 302 of the Penal Code on the ground of
reasonableness in the light of Articles 19 and 21 of the
Constitution, it is not necessary for us to express any categorical
opinion, one way or the other, as to which of these two
antithetical views, held by the Abolitionists and Retentionists, is
correct. It is sufficient to say that the very fact that persons of
reason, learning and light are rationally and deeply divided in
their opinion on this issue, is a ground among others, for
rejecting the petitioners argument that retention of death penalty
in the impugned provision, is totally devoid of reason and
purpose. If, notwithstanding the view of the Abolitionists to the
contrary, a very large segment of people, the world over,
including sociologists, legislators, jurists, judges and
administrators still firmly believe in the worth and necessity of
capital punishment for the protection of society, if in the
perspective of prevailing crime conditions in India,
contemporary public opinion channelized through the people's
representatives in Parliament, has repeatedly in the last three
decades, rejected all attempts, including the one made recently,
to abolish or specifically restrict the area of death penalty, if
death penalty is still a recognised legal sanction for murder or
some types of murder in most of the civilised countries in the
world, if the framers of the Indian Constitution were fully aware
— as we shall presently show they were — of the existence of
death penalty as punishment for murder, under the Indian Penal
Code, if the 35th Report and subsequent reports of the Law
Commission suggesting retention of death penalty, and
recommending revision of the Criminal Procedure Code and the
insertion of the new Sections 235(2) and 354(3) in that Code
providing for pre-sentence hearing and sentencing procedure on
conviction for murder and other capital offences were before the
Parliament and presumably considered by it when in 1972-1973
it took up revision of the Code of 1898 and replaced it by the
Code of Criminal Procedure, 1973, it is not possible to hold that
the provision of death penalty as an alternative punishment for
murder, in Section 302 of the Penal Code is unreasonable and
not in the public interest. We would, therefore, conclude that the
impugned provision in Section 302, violates neither the letter nor
the ethos of Article 19.”
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While dealing with the argument that Section 302 violates Article 21 of the
Constitution, Sarkaria, J. referred to the judgment in Maneka Gandhi v. Union
of India (1978) 1 SCC 248 and observed:
“Thus expanded and read for interpretative purposes, Article 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. There are several other
indications, also, in the Constitution which show that the
Constitution-makers were fully cognizant of the existence of
death penalty for murder and certain other offences in the Indian
Penal Code. Entries 1 and 2 in List III — Concurrent List — of
the Seventh Schedule, specifically refer to the Indian Penal Code
and the Code of Criminal Procedure as in force at the
commencement of the Constitution. Article 72(1)(c) specifically
invests the President with power to suspend, remit or commute
the sentence of any person convicted of any offence, and also
“in all cases where the sentence is a sentence of death”.
Likewise, under Article 161, the Governor of a State has been
given power to suspend, remit or commute, inter alia, the
sentence of death of any person convicted of murder or other
capital offence relating to a matter to which the executive power
of the State extends. Article 134, in terms, gives a right of appeal
to the Supreme Court to a person who, on appeal, is sentenced
to death by the High Court, after reversal of his acquittal by the
trial court. Under the successive Criminal Procedure Codes
which have been in force for about 100 years, a sentence of
death is to be carried out by hanging. In view of the aforesaid
constitutional postulates, by no stretch of imagination can it be
said that death penalty under Section 302 of the Penal Code,
either per se or because of its execution by hanging, constitutes
an unreasonable, cruel or unusual punishment. By reason of the
same constitutional postulates, it cannot be said that the framers
of the Constitution considered death sentence for murder or the
prescribed traditional mode of its execution as a degrading
punishment which would defile “the dignity of the individual”
within the contemplation of the preamble to the Constitution. On
parity of reasoning, it cannot be said that death penalty for the
offence of murder violates the basic structure of the
Constitution.”
(emphasis supplied)
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Sarkaria, J. then considered the question whether the Court should lay down
standards or norms for sentencing and answered the same in the negative by
giving the following reasons:
“Firstly, there is little agreement among penologists and jurists
as to what information about the crime and criminal is relevant
and what is not relevant for fixing the dose of punishment for a
person convicted of a particular offence. According to Cessare
Beccaria, who is supposed to be the intellectual progenitor of
today's fixed sentencing movement, “crimes are only to be
measured by the injury done to society”. But the 20th Century
sociologists do not wholly agree with this view. In the opinion of
Von Hirsch, the “seriousness of a crime depends both on the
harm done (or risked) by the act and degree of actor's
culpability”. But how is the degree of that culpability to be
measured. Can any thermometer be devised to measure its
degree? This is a very baffling, difficult and intricate problem.
Secondly, criminal cases do not fall into set behavioristic
patterns. Even within a single-category offence there are infinite,
unpredictable and unforeseeable variations. No two cases are
exactly identical. There are countless permutations and
combinations which are beyond the anticipatory capacity of the
human calculus. Each case presents its own distinctive features,
its peculiar combinations of events and its unique configuration
of facts. “Simply in terms of blameworthiness or desert criminal
cases are different from one another in ways that legislatures
cannot anticipate, and limitations of language prevent the precise
description of differences that can be anticipated.” This is
particularly true of murder. “There is probably no offence”,
observed Sir Ernest Cowers, Chairman of the Royal
Commission, “that varies so widely both in character and in
moral guilt as that which falls within the legal definition of
murder”. The futility of attempting to lay down exhaustive
standards was demonstrated by this court in Jagmohan by citing
the instance of the Model Penal Code which was presented to
the American Supreme Court in McGoutha (1971) 402 US 183.
Thirdly, a standardisation of the sentencing process which leaves
little room for judicial discretion to take account of variations in
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culpability within single-offence category ceases to be judicial. It
tends to sacrifice justice at the altar of blind uniformity. Indeed,
there is a real danger of such mechanical standardisation
degenerating into a bed of procrustean cruelty.
Fourthly, standardisation or sentencing discretion is a policy
matter which belongs to the sphere of legislation. When
Parliament as a matter of sound legislative policy, did not
deliberately restrict, control or standardise the sentencing
discretion any further than that is encompassed by the broad
contours delineated in Section 354(3), the court would not by
overleaping its bounds rush to do what Parliament, in its
wisdom, warily did not do.”
The learned Judge also referred to the judgment in Jagmohan Singh’s case and
observed:
“In Jagmohan, this Court had held that this sentencing discretion
is to be exercised judicially on well recognised principles, after
balancing all the aggravating and mitigating circumstances of the
crime. By “well recognised principles” the court obviously
meant the principles crystallised by judicial decisions illustrating
as to what were regarded as aggravating or mitigating
circumstances in those cases. The legislative changes since
Jagmohan — as we have discussed already — do not have the
effect of abrogating or nullifying those principles. The only
effect is that the application of those principles is now to be
guided by the paramount beacons of legislative policy
discernible from Sections 354(3) and 235(2), namely: (1) The
extreme penalty can be inflicted only in gravest cases of extreme
culpability; (2) In making choice of the sentence, in addition to
the circumstances, of the offence, due regard must be paid to the
circumstances of the offender, also.
xx xx xx xx xx xx
Pre-planned, calculated, cold-blooded murder has always been
regarded as one of an aggravated kind. In Jagmohan, it was
reiterated by this Court that if a murder is “diabolically
conceived and cruelly executed”, it would justify the imposition
of the death penalty on the murderer. The same principle was
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substantially reiterated by V.R. Krishna Iyer, J., speaking for the
Bench in Ediga Anamma (1974) 4 SCC 443, in these terms:
“The weapons used and the manner of their use,
the horrendous features of the crime and hapless,
helpless state of the victim, and the like, steel the
heart of the law for a sterner sentence.””
The learned Judge then noted that in Rajendra Prasad v. State of U.P. (1979) 3
SCC 646, the majority judgment of the three-Judge Bench had completely
reversed the view taken in Ediga Anamma v. State of A.P. (1974) 4 SCC 443
and observed:
“It may be noted that this indicator for imposing the death
sentence was crystallised in that case after paying due regard to
the shift in legislative policy embodied in Section 354(3) of the
Code of Criminal Procedure, 1973, although on the date of that
decision (February 11, 1974), this provision had not come into
force. In Paras Ram case (SLP(Crl.) Nos. 698 and 678 of 1953,
decided on October, 1973) also, to which a reference has been
made earlier, it was emphatically stated that a person who in a fit
of anti-social piety commits “blood-curdling butchery” of his
child, fully deserves to be punished with death. In Rajendra
Prasad, however, the majority (of 2:l) has completely reversed
the view that had been taken in Ediga Anamma regarding the
application of Section 354(3) on this point. According to it, after
the enactment of Section 354(3), “murder most foul” is not the
test. The shocking nature of the crime or the number of murders
committed is also not the criterion. It was said that the focus has
now completely shifted from the crime to the criminal. “Special
reasons” necessary for imposing death penalty “must relate not
to the crime as such but to the criminal”.
With great respect, we find ourselves unable to agree to this
enunciation. As we read Sections 354(3) and 235(2) and other
related provisions of the Code of 1973, it is quite clear to us that
for making the choice of punishment or for ascertaining the
existence or absence of “special reasons” in that context, the
court must pay due regard both to the crime and the criminal.
What is the relative weight to be given to the aggravating and
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mitigating factors, depends on the facts and circumstances of the
particular case. More often than not, these two aspects are so
intertwined that it is difficult to give a separate treatment to each
of them. This is so because “style is the man”. In many cases,
the extremely cruel or beastly manner of the commission of
murder is itself a demonstrated index of the depraved character
of the perpetrator. That is why, it is not desirable to consider the
circumstances of the crime and the circumstances of the criminal
in two separate watertight compartments. In a sense, to kill is to
be cruel and therefore all murders are cruel. But such cruelty
may vary in its degree of culpability. And it is only when the
culpability assumes the proportion of extreme depravity that
“special reasons” can legitimately be said to exist.
xxxx xxxx xxxx
In Rajendra Prasad, the majority said: “It is constitutionally
permissible to swing a criminal out of corporeal existence only if
the security of State and Society, public order and the interests
of the general public compel that course as provided in Article
19(2) to (6)”. Our objection is only to the word “only”. While it
may be conceded that a murder which directly threatens, or has
an extreme potentiality to harm or endanger the security of State
and Society, public order and the interests of the general public,
may provide “special reasons” to justify the imposition of the
extreme penalty on the person convicted of such a heinous
murder, it is not possible to agree that imposition of death
penalty on murderers who do not fall within this narrow category
is constitutionally impermissible. We have discussed and held
above that the impugned provisions in Section 302 of the Penal
Code, being reasonable and in the general public interest, do not
offend Article 19, or its “ethos” nor do they in any manner
violate Articles 21 and 14. All the reasons given by us for
upholding the validity of Section 302 of the Penal Code, fully
apply to the case of Section 354(3), Code of Criminal Procedure,
also. The same criticism applies to the view taken in Bishnu Deo
Shaw v. State of W.B. (1979) 3 SCC 714 which follows the
dictum in Rajendra Prasad.”
6. Although, in Bachan Singh’s case, the Constitution Bench upheld the
constitutional validity of Section 302 IPC, it did not enumerate the types of
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cases in which death penalty should be awarded instead of life imprisonment.
A three-Judge Bench considered this issue in Machhi Singh v. State of Punjab
(1983) 3 SCC 470. M.P. Thakkar, J. wrote the judgment on behalf of the
Bench with the following prelude:
“Protagonists of the “an eye for an eye” philosophy demand
“death-for-death”. The “Humanists” on the other hand press for
the other extreme viz. “death-in-no-case”. A synthesis has
emerged in Bachan Singh v. State of Punjab wherein the “rarestof-rare-cases” formula for imposing death sentence in a murder
case has been evolved by this Court. Identification of the
guidelines spelled out in Bachan Singh in order to determine
whether or not death sentence should be imposed is one of the
problems engaging our attention, to which we will address
ourselves in due course.”
Thakkar, J. then noted that a feud between two families triggered five incidents
in quick succession in five different villages resulting in death of 17 persons
and approved the views expressed by the Sessions Court and the High Court
that the appellants were guilty of committing heinous crimes. He then
proceeded to observe:
“The reasons why the community as a whole does not endorse
the humanistic approach reflected in “death sentence-in-no-case”
doctrine are not far to seek. In the first place, the very
humanistic edifice is constructed on the foundation of “reverence
for life” principle. When a member of the community violates
this very principle by killing another member, the society may
not feel itself bound by the shackles of this doctrine. Secondly, it
has to be realized that every member of the community is able to
live with safety without his or her own life being endangered
because of the protective arm of the community and on account
of the rule of law enforced by it. The very existence of the rule
of law and the fear of being brought to book operates as a
deterrent of those who have no scruples in killing others if it
suits their ends. Every member of the community owes a debt to
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the community for this protection. When ingratitude is shown
instead of gratitude by “killing” a member of the community
which protects the murderer himself from being killed, or when
the community feels that for the sake of self-preservation the
killer has to be killed, the community may well withdraw the
protection by sanctioning the death penalty. But the community
will not do so in every case. It may do so “in rarest of rare
cases” when its collective conscience is so shocked that it will
expect the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty. The
community may entertain such a sentiment when the crime is
viewed from the platform of the motive for, or the manner of
commission of the crime, or the anti-social or abhorrent nature of
the crime, such as for instance:
I. Manner of commission of murder
When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as to
arouse intense and extreme indignation of the community. For
instance,
(i) when the house of the victim is set aflame with the end in
view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or
cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body
is dismembered in a fiendish manner.
II. Motive for commission of murder
When the murder is committed for a motive which evinces
total depravity and meanness. For instance when (a) a hired
assassin commits murder for the sake of money or reward (b) a
cold-blooded murder is committed with a deliberate design in
order to inherit property or to gain control over property of a
ward or a person under the control of the murderer or vis-a-vis
whom the murderer is in a dominating position or in a position of
trust, or (c) a murder is committed in the course for betrayal of
the motherland.
III. Anti-social or socially abhorrent nature of the crime
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(a) When murder of a member of a Scheduled Caste or
minority community etc., is committed not for personal reasons
but in circumstances which arouse social wrath. For instance
when such a crime is committed in order to terrorize such
persons and frighten them into fleeing from a place or in order to
deprive them of, or make them surrender, lands or benefits
conferred on them with a view to reverse past injustices and in
order to restore the social balance.
(b) In cases of “bride burning” and what are known as
“dowry deaths” or when murder is committed in order to
remarry for the sake of extracting dowry once again or to marry
another woman on account of infatuation.
IV. Magnitude of crime
When the crime is enormous in proportion. For instance when
multiple murders say of all or almost all the members of a family
or a large number of persons of a particular caste, community, or
locality, are committed.
V. Personality of victim of murder
When the victim of murder is (a) an innocent child who could
not have or has not provided even an excuse, much less a
provocation, for murder (b) a helpless woman or a person
rendered helpless by old age or infirmity (c) when the victim is a
person vis-a-vis whom the murderer is in a position of
domination or trust (d) when the victim is a public figure
generally loved and respected by the community for the services
rendered by him and the murder is committed for political or
similar reasons other than personal reasons.”
The learned Judge then culled out the following propositions from the majority
judgment in Bachan Singh’s case:
“(i) The extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of
the ‘offender’ also require to be taken into consideration
along with the circumstances of the ‘crime’.
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(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed
only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only
provided, the option to impose sentence of imprisonment
for life cannot be conscientiously exercised having regard
to the nature and circumstances of the crime and all the
relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating
circumstances have to be accorded full weightage and a
just balance has to be struck between the aggravating and
the mitigating circumstances before the option is
exercised.”
7. The discussion on the subject would remain incomplete without a
reference to the concurring judgment of Fazal Ali, J, who was a member of the
Constitution Bench in Maru Ram v. Union of India (1981) 1 SCC 107. The
main question considered in that case was whether Section 433A of the Code
of Criminal Procedure, 1973 (Cr.P.C.) was violative of Article 14 of the
Constitution and whether the provisions contained therein impinge upon the
power vested in the President and the Governor under Articles 72 and 161 of
the Constitution. While expressing his agreement with the main judgment
authored by Krishna Iyer, J. on the scope of Section 433A Cr.P.C., Fazal Ali,
J. spelt out the following reasons for imposing deterrent sentences:
“(1) to protect the community against callous criminals for a
long time,
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(2) to administer as clearly as possible to others tempted to
follow them into lawlessness on a war scale if they are brought
to and convicted, deterrent punishment will follow, and
(3) to deter criminals who are forced to undergo long-term
imprisonment from repeating their criminal acts in future. Even
from the point of view of reformative form of punishment
“prolonged and indefinite detention is justified not only in the
name of prevention but cure. The offender has been regarded in
one sense as a patient to be discharged only when he responds to
the treatment and can be regarded as safe” for the society.”
The learned Judge then referred to the judgment in Bachan Singh’s case and
observed:
“Taking into account the modern trends in penology there are
very rare cases where the courts impose a sentence of death and
even if in some cases where such sentences are given, by the
time the case reaches this Court, a bare minimum of the cases
are left where death sentences are upheld. Such cases are only
those in which imposition of a death sentence becomes an
imperative necessity having regard to the nature and character of
the offences, the antecedents of the offender and other factors
referred to in the Constitution Bench judgment of this Court in
Bachan Singh v. State of Punjab. In these circumstances, I am of
the opinion that the Parliament in its wisdom chose to act in
order to prevent criminals committing heinous crimes from being
released through easy remissions or substituted form of
punishments without undergoing at least a minimum period of
imprisonment of fourteen years which may in fact act as a
sufficient deterrent which may prevent criminals from
committing offences. In most parts of our country, particularly in
the north, cases are not uncommon where even a person
sentenced to imprisonment for life and having come back after
earning a number of remissions has committed repeated
offences. The mere fact that a long-term sentence or for that
matter a sentence of death has not produced useful results cannot
support the argument either for abolition of death sentence or for
reducing the sentence of life imprisonment from 14 years to
something less. The question is not what has happened because
of the provisions of the Penal Code but what would have
happened if deterrent punishments were not given. In the present
distressed and disturbed atmosphere we feel that if deterrent
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punishment is not resorted to, there will be complete chaos in the
entire country and criminals will be let loose endangering the
lives of thousands of innocent people of our country. In spite of
all the resources at its hands, it will be difficult for the State to
protect or guarantee the life and liberty of all the citizens, if
criminals are let loose and deterrent punishment is either
abolished or mitigated. Secondly, while reformation of the
criminal is only one side of the picture, rehabilitation of the
victims and granting relief from the tortures and sufferings which
are caused to them as a result of the offences committed by the
criminals is a factor which seems to have been completely
overlooked while defending the cause of the criminals for
abolishing deterrent sentences. Where one person commits three
murders it is illogical to plead for the criminal and to argue that
his life should be spared, without at all considering what has
happened to the victims and their family. A person who has
deprived another person completely of his liberty for ever and
has endangered the liberty of his family has no right to ask the
court to uphold his liberty. Liberty is not a one-sided concept,
nor does Article 21 of the Constitution contemplate such a
concept. If a person commits a criminal offence and punishment
has been given to him by a procedure established by law which
is free and fair and where the accused has been fully heard, no
question of violation of Article 21 arises when the question of
punishment is being considered. Even so, the provisions of the
Code of Criminal Procedure of 1973 do provide an opportunity
to the offender, after his guilt is proved, to show circumstances
under which an appropriate sentence could be imposed on him.
These guarantees sufficiently comply with the provisions of
Article 21. Thus, it seems to me that while considering the
problem of penology we should not overlook the plight of
victimology and the sufferings of the people who die, suffer or
are maimed at the hands of criminals.”
(emphasis supplied)
8. Even after the judgments in Bachan Singh’s case and Machhi Singh’s
case, Jurists and human rights activists have persisted with their demand for
the abolition of death penalty and several attempts have been made to persuade
the Central Government to take concrete steps in this regard. It is a different
1Page 18
story that they have not succeeded because in recent years the crime scenario
has changed all over the world. While there is no abatement in the crimes
committed due to personal animosity and property disputes, people across the
world have suffered on account of new forms of crimes. The monster of
terrorism has spread its tentacles in most of the countries. India is one of the
worst victims of internal and external terrorism. In the last three decades,
hundreds of innocent lives have been lost on account of the activities of
terrorists, who have mercilessly killed people by using bullets, bombs and
other modern weapons. While upholding the constitutional validity of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) in Kartar
Singh v. State of Punjab (1994) 3 SCC 569, this Court took cognizance of the
spread of terrorism in the world in general and in India in particular, in the
following words:
“From the recent past, in many parts of the world, terrorism and
disruption are spearheading for one reason or another and
resultantly great leaders have been assassinated by suicide
bombers and many dastardly murders have been committed.
Deplorably, determined youths lured by hard-core criminals and
underground extremists and attracted by the ideology of
terrorism are indulging in committing serious crimes against the
humanity. In spite of the drastic actions taken and intense
vigilance activated, the terrorists and militants do not desist from
triggering lawlessness if it suits their purpose. In short, they are
waging a domestic war against the sovereignty of their
respective nations or against a race or community in order to
create an embryonic imbalance and nervous disorder in the
society either on being stimulated or instigated by the national,
transnational or international hard-core criminals or secessionists
etc. Resultantly, the security and integrity of the countries
concerned are at peril and the law and order in many countries is
1Page 19
disrupted. To say differently, the logic of the cult of the bullet is
hovering the globe completely robbing off the reasons and
rhymes. Therefore, every country has now felt the need to
strengthen vigilance against the spurt in the illegal and criminal
activities of the militants and terrorists so that the danger to its
sovereignty is averted and the community is protected.
Thus, terrorism and disruptive activities are a worldwide
phenomenon and India is not an exception. Unfortunately in the
recent past this country has fallen in the firm grip of spiralling
terrorists' violence and is caught between the deadly pangs of
disruptive activities. As seen from the Objects and Reasons of
the Act 31 of 1985, “Terrorists had been indulging in wanton
killings, arson, looting of properties and other heinous crimes
mostly in Punjab and Chandigarh” and then slowly they
expanded their activities to other parts of the country i.e. Delhi,
Haryana, U.P. and Rajasthan. At present they have outstretched
their activities by spreading their wings far and wide almost
bringing the major part of the country under the extreme
violence and terrorism by letting loose unprecedented and
unprovoked repression and disruption unmindful of the security
of the nation, personal liberty and right, inclusive of the right to
live with human dignity of the innocent citizens of this country
and destroying the image of many glitzy cities like Chandigarh,
Srinagar, Delhi and Bombay by strangulating the normal life of
the citizens. Apart from many skirmishes in various parts of the
country, there were countless serious and horrendous events
engulfing many cities with blood-bath, firing, looting, mad
killing even without sparing women and children and reducing
those areas into a graveyard, which brutal atrocities have rocked
and shocked the whole nation.
Everyday, there are jarring pieces of information through
electronic and print media that many innocent, defenceless
people particularly poor, politicians, statesmen, government
officials, police officials, army personnel inclusive of the jawans
belonging to Border Security Force have been mercilessly
gunned down. No one can deny these stark facts and naked truth
by adopting an ostrich like attitude completely ignoring the
impending danger. Whatever may be the reasons, indeed there is
none to deny that.”
1Page 20
THE FACTS:
9. We shall now advert to the facts necessary for disposing the above
noted writ petitions, one of which was jointly filed by Shri Devender Pal Singh
Bhullar (hereinafter referred to as ‘the petitioner’), who was convicted by the
designated Court, Delhi for various offences under TADA and IPC and Delhi
Sikh Gurdwara Management Committee. Later on, the Court accepted the oral
request made by learned senior counsel for the petitioners and deleted the
name of petitioner No.2 from the array of parties. The other writ petition has
been filed by the wife of the petitioner and the third has been filed by Justice
on Trial Trust, a non-Government organization registered under the Bombay
Public Trusts Act, 1950.
9.1 After obtaining the degree of Bachelor of Engineering from Guru Nanak
Engineering College, Ludhiana in 1990, the petitioner joined as a teacher in the
same college. He was suspected to be involved in the terrorist activities in
Punjab and it is said that he was responsible for an attempt made on the life of
Shri Sumedh Singh Saini, the then Senior Superintendent of Police, Chandigarh
on 29.8.1991. Shri Saini’s car was blasted by remote control resulting in the
death of some of his security guards. The petitioner was also suspected to be
responsible for an attack on the car cavalcade of the then President of Youth
Congress Maninderjit Singh Bitta, in Delhi on 10.9.1993. As a result of the
blast caused by using 40 kgs. RDX, 9 persons were killed and 17 were injured.
2Page 21
Apprehending his arrest and possible elimination by the police as is alleged to
have been done in the case of his father, uncle and friend Balwant Singh
Multani, the petitioner decided to go to Canada. However, on the basis of
information supplied by the Indian authorities, he was taken into custody at
Frankfurt Airport and deported to India. He was charged with offences under
Sections 419, 420, 468 and 471 IPC, Section 12 of the Passports Act, 1967
and Sections 2, 3 and 4 TADA. The designated Court, Delhi found him guilty
and sentenced him to death. The appeal filed by him was dismissed by this
Court vide judgment titled Devender Pal Singh v. State (NCT of Delhi), (2002)
5 SCC 234. The review petition filed by the petitioner was also dismissed by
this Court vide order dated 17.12.2002.
9.2 Soon after dismissal of the review petition, the petitioner submitted
petition dated 14.1.2003 to the President under Article 72 of the Constitution
and prayed for commutation of his sentence. Delhi Sikh Gurdwara
Management Committee sent letters dated 28.1.2003 to the then President, Dr.
A.P.J. Abdul Kalam; the then Prime Minister, Shri Atal Bihari Bajpai and the
former Prime Minister, Shri H.D. Deve Gowda asking for a meeting with them
in connection with commutation of the death sentence awarded to the
petitioner. After three years, Delhi Sikh Gurdwara Management Committee
submitted representations dated 6.4.2006 and 29.9.2006 to Dr. A.P.J. Abdul
Kalam and the Prime Minister Dr. Manmohan Singh and reiterated their
demand for a meeting. In the letter sent to Dr. Manmohan Singh, it was
2Page 22
mentioned that the Governments of Germany and Canada had made strong
representation for clemency. It was also pointed out that Germany has already
abolished death penalty and in terms of Section 34C of the Extradition Act,
1962, death penalty cannot be imposed if the laws of the State which
surrenders or returns the accused do not provide for imposition of death
penalty for such crime. The Committee also made a mention of large number
of representations made by the Sikh community, particularly those settled in
Canada, for grant of clemency to the petitioner.
9.3 During the pendency of the petition filed under Article 72, the petitioner
filed Curative Petition (Crl.) No. 5 of 2003, which was dismissed by this Court
on 12.3.2003.
9.4 The files produced by the learned Additional Solicitor General show that
even before the petition filed by the petitioner could be processed by the
Ministry of Home Affairs, Government of India, the President’s Secretariat
forwarded letter dated 25.12.2002 sent by Justice A.S. Bains (Retd.),
Chairman, Punjab Human Rights Organization and others in the name of
‘Movement Against State Repression, Chandigarh’, for commutation of death
sentence awarded to the petitioner on the ground that in the case of Abu
Salem, the Government of India had given an assurance to the Government of
Portugal that on his deportation, Abu Salem will not be awarded death penalty.
2Page 23
9.5 In April 2003, the President’s Secretariat forwarded to the Ministry of
Home Affairs, the petitions received from the following personalities for
showing clemency to the petitioner:
(1) Mr. David Kilgour, Secretary of State (Asia Pacific);
(2) Department of Foreign Affairs and International Trade, Canada;
(3) Congress of the United States, Washington;
(4) Mr. Tony Baldry, MP, House of Commons, London;
(5) Shri Ram Jethmalani, M.P. (Rajya Sabha);
(6) Shri Justice A.S. Bains, former Judge and Convenor, Devinderpal
Singh Bhullar Defence Committee; and
(7) Shri Simranjit Singh Mann, M.P. (Lok Sabha).
9.6 On 3.6.2003, the Ministry of External Affairs forwarded two communications received by it
from the Greek Ambassador, in his capacity as President of the European Union Ambassador in
New Delhi, who conveyed the European Union’s strong conviction against the death sentence and
pleaded for clemency in favour of the petitioner. Similar communications were sent by Mr. Jean
Lamberti, Member European Parliament, Brussels, and various Sikh forums/organizations from
Punjab and U.K.
9.7 After the matter was processed at different levels of the Government, in the backdrop of
internal and external pressures, the case was finally submitted to the President on 11.7.2005 with
the recommendation that the mercy petition of the petitioner be rejected. It is not borne out from
the record as to what happened for the next five years and nine months, but this much is evident
that no decision was taken by the President.
9.8 On 29.4.2011, the Ministry of Home Affairs sent a request to the President’s Secretariat to
return the file of the petitioner. On 6.5.2011, the file was withdrawn from the President’s
2Page 24
Secretariat for reviewing the petitioner’s case. The matter was again examined in the Ministry of
Home Affairs and on 10.5.2011, the then Home Minister opined that those convicted in the cases
of terrorism do not deserve any mercy or compassion and accordingly recommended that the
sentence of death be confirmed. The President accepted the advice of the Home Minister and
rejected the mercy petition. The petitioner was informed about this vide letter dated 13.6.2011
sent by Deputy Secretary (Home) to the Jail Authorities. The relevant portion of the decision
taken by the President, which was incorporated in letter dated 30.5.2011 sent by Joint
Secretary (Judicial), Ministry of Home Affairs, Government of India to the
Principal Secretary, Home Department, Government of NCT of Delhi, reads as
under:
“The President of India has, in exercise of
the powers under Article 72 of the
Constitution of India, been pleased to
reject the mercy petition submitted by the
condemned prisoner Devender Pal Singh and
petitions on his behalf from others. The
prisoner may be informed of the orders of the
President act accordingly.”
9.9 After rejection of his petition by the President, the petitioner sought leave of the
Court and was allowed to amend the writ petition and make a prayer for
quashing communication dated 13.6.2011.
9.10 While issuing notice of Writ Petition (Criminal) D. No.16039 of 2011
(unamended), this Court directed the respondent to clarify why the petitions
made by the petitioner had not been disposed of for more than 8 years. In
compliance of the Court’s directive, Shri B.M. Jain, Deputy Secretary (Home)
filed short affidavit dated 19/21.7.2011. Subsequently, Shri J. L. Chugh, Joint
2Page 25
Secretary, Ministry of Home Affairs, filed detailed affidavit, paragraphs 7 and
8 of which are extracted below:
“7. Since the Mercy Petitions remained pending
consideration of the President's Secretariat a request was
made by the Ministry of Home Affairs on 20.04.2011 for
withdrawal of the file of the mercy petition from
President's Secretariat for review of this case for
consideration of the Hon'ble President of India. The file was received
by the Ministry of Home Affairs on 03.05.2011 from the
President's Secretariat and after reexamination of the case
the file was again submitted on 10.05.2011 to the President's
Secretariat for decision of the Hon'ble President of India.
Finally the Hon'ble President was pleased to reject the
Mercy Petition of the petitioner on 25.05.2011. It is
submitted that the file of the Mercy Petition along with decision of
the Hon'ble President was received by the M/o Home Affairs on
27.05.2011 and the M/o Home Affairs
communicated the decision of the Hon'ble President to the
GNCT of Delhi on 30.05.2011. The details of cases of
mercy petitions submitted to President's
Secretariat and decided are as under:
Tenure Cases submitted/
resubmitted to the
President’s
Secretariat
Decisio
n
Arrived
NDA (March
1998 to
May 2004)
14 0
UPA I (May 2004
to April
2009)
28 2
UPA II (May 2009
to
30.9.2011)
25 1
3
2Page 26
8. With reference to the above figure, it is submitted that
there were 28 Mercy petitions of death convicts
pending under Article 72 of the Constitution in
October 2009. Two cases were received in November 2009 and two
new Mercy Petition cases have been received in 2011 (till
30th September, 2011). This makes the total
number of Mercy Petitions 32 as on 30.09.2011. After the new
Government was formed in May 2009, in September 2009 it
was decided to recall the cases pending with the
President's Secretariat for review in the Ministry of Home Affairs, to
assist in expediting a decision by the President of India in each case.
The cases were recalled from President's Secretariat
one-by-one, on the basis of the date of trial court judgment
and were resubmitted to the President's Secretariat after review.
Recalling of the cases was not under a Constitutional provision but an
administrative decision to ensure a fair and equal treatment of all
cases and to assist in expediting a decision by the Hon'ble
President. Till 30.09.2011, 25 Mercy Petition were
resubmitted/submitted to the President's Secretariat. The Hon'ble
President decided one Mercy Petition in November 2009, four
Mercy Petitions in 2010 and eight Mercy Petitions in 2011
(till 30th September, 2011). Therefore, a total of 13 Mercy Petitions
have been decided by the President since November 2009.
Presently, 19 Mercy Petitions are pending under Article 72 of
the Constitution; out of which 14 are pending with President's
Secretariat and five are pending with Ministry of Home Affairs
(including the two new mercy petitions which have been received
in 2011).”
ARGUMENTS:
10. Shri K.T.S. Tulsi, learned senior counsel for the petitioner relied upon the judgments in
T.V. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC 68, K.P. Mohd. v.
State of Kerala 1984 Supp. SCC 684 and Javed Ahmed v. State of Maharashtra
(1985) 1 SCC 275 and argued that 8 years’ delay in the disposal of mercy petition
2Page 27
should be treated as sufficient for commutation of death sentence into life
imprisonment. Shri Tulsi also referred to the judgments in Peter Bradshaw v.
Attorney General Privy Council Appeal Nos. 36 of 1993, Court of Appeal,
Barbados, Henfield v. Attorney General (1996) UKPK 36, Catholic
Commission v. Attorney General (2001) AHRLR (ZWSC 1993),
Commonwealth v. O’Neal (1975) 339 NE 2d 676 and De Freitas v. Benny
(1976) AC 239 and argued that even though the judgments of other
jurisdictions are not binding on this Court, the propositions laid down therein
can provide useful guidance for proper understanding of the ambit and scope
of the power vested in the President under Article 72 and the Governor under
Article 161 of the Constitution. Shri Tulsi then referred to the judgments in
Vivian Rodrick v. State of Bengal (1971) 1 SCC 468, State of U.P. v. Suresh
(1981) 3 SCC 653, Neiti Sreeramulu v. State of Andhra Pradesh (1974) 3 SCC
314, State of U.P. v. Lala Singh (1978) 1 SCC 4 and Sadhu Singh v. State
(1978) 4 SCC 428 to show that this Court has ordered commutation of death
sentence where the delay was between one and seven years. Learned senior
counsel invited our attention to the information obtained from Rashtrapati
Bhawan under the Right to Information Act, 2005 and argued that long delay
on the President’s part in deciding the mercy petitions is inexplicable. He
emphasized that 8 years’ delay has seriously affected the petitioner’s health,
who has become mentally sick and this should be treated as an additional
factor for commutation of death sentence awarded to him. In support of this
2Page 28
submission, Shri Tulsi relied upon the records of Deen Dayal Upadhyay
Hospital, Hari Nagar, New Delhi and the Institute of Human Behaviors And Allied
Sciences, Delhi as also certificate dated 2.9.2011 issued by Dr. Rajesh Kumar, Associate
Professor in Psychiatry at the Institute. In the end, Shri Tulsi made an appeal that the Court
should take a sympathetic view in the petitioner’s case because there is a sea change in the
situation in Punjab.
11. Shri Ram Jethmalani, learned senior counsel, who assisted the Court as an Amicus
extensively referred to the judgments in Vatheeswaran’s case, K.P. Mohd.’s case and Javed
Ahmed’s case and argued that the rejection of the petition filed by the petitioner should be
quashed because there was unexplained delay of 8 years. Learned senior counsel
forcefully argued that the judgment in Triveniben v. State of Gujarat (1989) 1 SCC 678 does
not lay down correct law because the Bench which decided the matter did not notice the
judgment of another Constitution Bench in Kehar Singh v. Union of India (1989) 1 SCC 204.
Learned senior counsel pointed out that while deciding the petition filed under Article 72 of
the Constitution, the President can independently consider the issue of guilt of the accused
and accept the mercy petition without disturbing the finding recorded by the Court. Shri
Jethmalani submitted that attention of the Bench which decided Triveniben’s case does not
appear to have been drawn to the views expressed in other judgments that in cases where
the accused is convicted for murder, life imprisonment is the normal punishment and death
penalty can be inflicted only in the rarest of rare cases, which involve extraordinary brutality
in the commission of the crime or other aspects of heinousness. Learned senior counsel
then argued that delay in deciding a mercy petition filed under Article 72 or Article 161 of the
2Page 29
Constitution due to executive indifference or callousness or other extraneous reasons should
always be treated as sufficient for commutation of death sentence into life imprisonment.
12. Shri Andhyarujina, learned senior counsel, who also assisted the Court as an
Amicus commenced his submissions by pointing out that the power reposed in the President
under Article 72 and the Governor under Article 161 of the Constitution is not a matter of
grace or mercy, but is a constitutional duty of great significance and the same has to be
exercised with great care and circumspection keeping in view the larger public interest. He
referred to the judgment of the U.S. Supreme Court in Biddle v. Perovoch 274 US 480 as
also the judgments of this Court in Kehar Singh’s case and Epuru Sudhakar v. Government
of A.P. (2006) 8 SCC 161 and submitted that the power to grant pardon etc. is to be
exercised by the President not only for the benefit of the convict, but also for the welfare of
the people. Learned senior counsel submitted that inordinate delay in disposal of a petition
filed under Article 72 or 161 is cruel, inhuman and degrading. He relied upon a passage
from the book titled “The Death Penalty” A Worldwide Perspective by Roger Hood &
Carolyne Hoyle 4th Ed. Pages 175-186 and submitted that keeping a convict in suspense for
years together is totally unjustified because it creates adverse physical conditions and
psychological stress on the convict under sentence of death. Shri Andhyarujina relied on
Riley v. Attorney General of Jamaica (1983) 1 AC 719, Pratt v. Attorney General of Jamaica
(1994) 2 AC 1 and argued that except in cases involving delay by or on behalf of the convict,
the Court should always lean in favour of commutation of death sentence. Learned senior
counsel lamented that in a large number of cases, the President did not decide the petitions
filed under Article 72 and, therefore, the Court should consider the desirability of ordering
commutation of death sentence in all such cases.
2Page 30
13. Shri Shyam Divan, Senior Advocate, who appeared for the petitioner in SLP(Crl.)
No.1105 of 2012 submitted that if delay in completion of the proceedings is considered as a
relevant factor by the High Courts and this Court for converting the death sentence into life
imprisonment, delay in the execution of the death sentence should be treated by the
President as sufficient for invoking the power vested in him under Article 72 of the
Constitution for grant of pardon. In support of his submissions, Shri Divan relied upon the
judgments in Vivian Rodrick’ case, Madhu Mehta v. Union of India (1989) 3 SCR 775,
Daya Singh v. Union of India (1991) 3 SCC 61 and Shivaji Jaising Babar v. State of
Maharashtra (1991) 4 SCC 375.
14. Shri K.V. Vishwanathan, learned senior counsel, who argued on behalf of the
intervenor, PUDR, submitted that the attempt made by the respondent to equate the delay in
judicial processes and the delay in executive processes should be rejected in view of the
judgment in Triveniben’s case because there is a marked qualitative difference between the
judicial and executive processes. Learned senior counsel submitted that when a matter
remains pending before the Court, the State and the accused take adversarial
positions and submit their dispute before the judiciary for resolution whereas
under the clemency jurisdiction, the accused pleads for mercy before the same
party that prosecuted him. Learned senior counsel emphasized that there is an
element of total submissiveness and surrender when mercy/pardon is sought by
the accused and there is no adversarial role at this stage. Shri Vishwanathan relied
upon the minority judgment of the Privy Council in Noel Riley v. Attorney General (supra)
and argued that the prolonged incarceration of a death row convict under the
3Page 31
guise that the mercy petitions are pending disposal or due to gross delay in
disposal of mercy petitions renders the sentence of death in-executable.
Learned senior counsel pointed out that India is a signatory to a number of
International Covenants and Article 5 of the Universal Declaration of Human
Rights and Article 7 of the International Covenants on Civil and Political
Rights state that no-one should be subjected to cruel, inhuman or degrading
treatment or punishment and submitted that long incarceration awaiting a
verdict on a condemned prisoner’s mercy petition amounts to cruel and
inhuman treatment of such prisoner, which amounts to violation of these
Covenants. Learned senior counsel also referred to the memorandum of the
Ministry of Home Affairs relating to “Procedure regarding petitions for mercy
in death sentence cases” and submitted that various clauses thereof recognise the need
for handling the disposal of mercy petitions with utmost expedition and speed.
In support of his argument that delay should be treated as sufficient for commutation of
death sentence into life imprisonment, Shri Vishwanathan relied upon the judgments of this
Court in Madhu Mehta’s case and Jagdish v. State of Madhya Pradesh (2009) 9
SCC 495 and a judgment from Zimbabwe being Catholic Commission for
Justice and Peace in Zimbabwe v. Attorney General, Zimbabwe & Ors. 1993
(4) SA 239 (ZS).
15. Shri Harin P. Raval, learned Additional Solicitor General emphasized that the
disposal of petitions filed under Articles 72 and 161 of the Constitution requires
consideration of various factors, i.e., the nature of crime, the manner in which the crime
3Page 32
is committed and its impact on the society and that the time consumed in this process
cannot be characterised as delay. Shri Raval pointed out that the petitions filed by and
on behalf of the petitioner were considered at various levels of the Government in the
light of the representations made by various individuals including public representatives
from within and outside the country apart from different organizations all of whom had
espoused his cause and, therefore, it cannot be said that there was undue delay in the
disposal of the petition. Learned Additional Solicitor General then submitted that no
time frame can be fixed for the President to decide the petitions filed under Article 72
and delay cannot be a ground for commuting the death sentence imposed on the
petitioner ignoring that he was convicted for a heinous crime of killing nine innocent
persons. He relied upon the proposition laid down by the Constitution Bench in
Triveniben’s case that no fixed period of delay in the disposal of petitions filed under
Article 72 or 161 can be judicially prescribed to make the sentence of death inexecutable and argued that the contrary views expressed by smaller Benches in
Vatheeswaran’s case and Javed Ahmed’s case should be declared as not laying down
correct law.
16. The arguments of the learned counsel for the parties/intervenor and the learned
Amicus have given rise to the following questions:
(a) What is the nature of power vested in the President under Article 72
and the Governor under Article 161 of the Constitution?
3Page 33
(b) Whether delay in deciding a petition filed under Article 72 or 161 of
the Constitution is, by itself, sufficient for issue of a judicial fiat for
commutation of the sentence of death into life imprisonment irrespective
of the nature and magnitude of the crime committed by the convict and
the fact that the delay may have been occasioned due to direct or
indirect pressure brought upon the Government by the convict through
individuals, groups of people and organizations from within or outside
the country or failure of the concerned public authorities to perform their
duty?
(c) Whether the parameters laid down by the Constitution Bench in
Triveniben’s case for judging the issue of delay in the disposal of a
petition filed under Article 72 or 161 of the Constitution can be applied
to the cases in which an accused has been found guilty of committing
offences under TADA and other similar statutes?
(d) What is the scope of the Court’s power of judicial review of the
decision taken by the President under Article 72 and the Governor under
Article 161 of the Constitution, as the case may be?
17. We can find abstract answers to each of the aforesaid questions in the
judicial pronouncements of this Court and while doing so, we can also derive
help from the judgments of other jurisdictions, but the most important issue
which calls for indepth examination, elucidation and determination in these
3Page 34
cases is whether delayed disposal of the petition filed under Article 72 can
justify judicial review of the decision taken by the President not to grant
pardon and whether the Court can ordain commutation of the sentence of death
into life imprisonment ignoring the nature and magnitude of the crime, the
motive and manner of commission of the crime, the type of weapon used for
committing the crime and overall impact of crime on the society apart from the
fact that substantial delay in the disposal of the petition filed under Article 72
can reasonably be attributed to the internal and external pressure brought upon
the Government on behalf of the convict by filing a spate of petitions and by
using other means.
Re: Question No. (a):
18. The nature of the power vested in the President under Article 72 and the
Governor under Article 161 of the Constitution was considered by the
Constitution Bench in Maru Ram’s case. The main question considered in that
case was whether the power of remission vested in the Government under
Section 433A Cr.P.C. is in conflict with Articles 72 and 162 of the
Constitution. While answering the question in the negative, Krishna Iyer, J.,
who authored the main judgment, observed:
“It is apparent that superficially viewed, the two powers, one
constitutional and the other statutory, are coextensive. But two
things may be similar but not the same. That is precisely the
difference. We cannot agree that the power which is the creature
of the Code can be equated with a high prerogative vested by the
Constitution in the highest functionaries of the Union and the
3Page 35
States. The source is different, the substance is different, the
strength is different, although the stream may be flowing along
the same bed. We see the two powers as far from being
identical, and, obviously, the constitutional power is
“untouchable” and “unapproachable” and cannot suffer the
vicissitudes of simple legislative processes. Therefore, Section
433-A cannot be invalidated as indirectly violative of Articles 72
and 161. What the Code gives, it can take, and so, an embargo
on Sections 432 and 433(a) is within the legislative power of
Parliament.
Even so, we must remember the constitutional status of Articles
72 and 161 and it is common ground that Section 433-A does
not and cannot affect even a wee bit the pardon power of the
Governor or the President. The necessary sequel to this logic is
that notwithstanding Section 433-A the President and the
Governor continue to exercise the power of commutation and
release under the aforesaid articles.
Are we back to square one? Has Parliament indulged in
legislative futility with a formal victory but a real defeat? The
answer is “yes” and “no”. Why “yes”? Because the President is
symbolic, the Central Government is the reality even as the
Governor is the formal head and sole repository of the executive
power but is incapable of acting except on, and according to, the
advice of his Council of Ministers. The upshot is that the State
Government, whether the Governor likes it or not, can advice
and act under Article 161, the Governor being bound by that
advice. The action of commutation and release can thus be
pursuant to a governmental decision and the order may issue
even without the Governor's approval although, under the Rules
of Business and as a matter of constitutional courtesy, it is
obligatory that the signature of the Governor should authorise
the pardon, commutation or release. The position is substantially
the same regarding the President. It is not open either to the
President or the Governor to take independent decision or direct
release or refuse release of anyone of their own choice. It is
fundamental to the Westminster system that the Cabinet rules
and the Queen reigns being too deeply rooted as foundational to
our system no serious encounter was met from the learned
Solicitor-General whose sure grasp of fundamentals did not
permit him to controvert the proposition, that the President and
the Governor, be they ever so high in textual terminology, are
but functional euphemisms promptly acting on and only on the
3Page 36
advice of the Council of Ministers have in a narrow area of
power. The subject is now beyond controversy, this Court
having authoritatively laid down the law in Shamsher Singh case
(1974) 2 SCC 831. So, we agree, even without reference to
Article 367(1) and Sections 3(8)(b) and 3(60)(b) of the General
Clauses Act, 1897, that, in the matter of exercise of the powers
under Articles 72 and 161, the two highest dignitaries in our
constitutional scheme act and must act not on their own
judgment but in accordance with the aid and advice of the
ministers. Article 74, after the 42nd Amendment silences
speculation and obligates compliance. The Governor vis-à-vis
his Cabinet is no higher than the President save in a narrow area
which does not include Article 161. The constitutional
conclusion is that the Governor is but a shorthand expression for
the State Government and the President is an abbreviation for
the Central Government.”
(emphasis supplied)
19. The proposition laid down in Maru Ram’s case was reiterated by
another Constitution Bench in Kehar Singh’s case in the following words:
“The Constitution of India, in keeping with modern constitutional
practice, is a constitutive document, fundamental to the
governance of the country, whereby, according to accepted
political theory, the people of India have provided a constitutional
polity consisting of certain primary organs, institutions and
functionaries to exercise the powers provided in the Constitution.
All power belongs to the people, and it is entrusted by them to
specified institutions and functionaries with the intention of
working out, maintaining and operating a constitutional order.
The Preambular statement of the Constitution begins with the
significant recital:
“We, the people of India, having solemnly resolved to constitute
India into a Sovereign Socialist Secular Democratic Republic ...
do hereby adopt, enact and give to ourselves this Constitution.”
To any civilised society, there can be no attributes more important
than the life and personal liberty of its members. That is evident
from the paramount position given by the courts to Article 21 of
the Constitution. These twin attributes enjoy a fundamental
3Page 37
ascendancy over all other attributes of the political and social
order, and consequently, the Legislature, the Executive and the
Judiciary are more sensitive to them than to the other attributes of
daily existence. The deprivation of personal liberty and the threat
of the deprivation of life by the action of the State is in most
civilised societies regarded seriously and, recourse, either under
express constitutional provision or through legislative enactment
is provided to the judicial organ. But, the fallibility of human
judgment being undeniable even in the most trained mind, a mind
resourced by a harvest of experience, it has been considered
appropriate that in the matter of life and personal liberty, the
protection should be extended by entrusting power further to
some high authority to scrutinise the validity of the threatened
denial of life or the threatened or continued denial of personal
liberty. The power so entrusted is a power belonging to the
people and reposed in the highest dignitary of the State. In
England, the power is regarded as the royal prerogative of pardon
exercised by the Sovereign, generally through the Home
Secretary. It is a power which is capable of exercise on a variety
of grounds, for reasons of State as well as the desire to safeguard
against judicial error. It is an act of grace issuing from the
Sovereign. In the United States, however, after the founding of
the Republic, a pardon by the President has been regarded not as
a private act of grace but as a part of the constitutional scheme. In
an opinion, remarkable for its erudition and clarity, Mr Justice
Holmes, speaking for the Court in W.I. Biddle v. Vuco Perovich
(71 L Ed 1161) enunciated this view, and it has since been
affirmed in other decisions. The power to pardon is a part of the
constitutional scheme, and we have no doubt, in our mind, that it
should be so treated also in the Indian Republic. It has been
reposed by the people through the Constitution in the Head of the
State, and enjoys high status. It is a constitutional responsibility
of great significance, to be exercised when occasion arises in
accordance with the discretion contemplated by the context. It is
not denied, and indeed it has been repeatedly affirmed in the
course of argument by learned counsel, Shri Ram Jethmalani and
Shri Shanti Bhushan, appearing for the petitioners that the power
to pardon rests on the advice tendered by the Executive to the
President, who subject to the provisions of Article 74(1) of the
Constitution, must act in accordance with such advice.”
(emphasis supplied)
3Page 38
In that case, the Constitution Bench also considered whether the President can,
in exercise of the power vested in him under Article 72 of the Constitution,
scrutinize the evidence on record and come to a different conclusion than the
one arrived at by the Court and held:
“We are of the view that it is open to the President in the exercise
of the power vested in him by Article 72 of the Constitution to
scrutinise the evidence on the record of the criminal case and
come to a different conclusion from that recorded by the court in
regard to the guilt of, and sentence imposed on, the accused. In
doing so, the President does not amend or modify or supersede
the judicial record. The judicial record remains intact, and
undisturbed. The President acts in a wholly different plane from
that in which the Court acted. He acts under a constitutional
power, the nature of which is entirely different from the judicial
power and cannot be regarded as an extension of it. And this is
so, notwithstanding that the practical effect of the Presidential act
is to remove the stigma of guilt from the accused or to remit the
sentence imposed on him. ....
The legal effect of a pardon is wholly different from a judicial
supersession of the original sentence. It is the nature of the power
which is determinative. ...
It is apparent that the power under Article 72 entitles the
President to examine the record of evidence of the criminal case
and to determine for himself whether the case is one deserving the
grant of the relief falling within that power. We are of opinion that
the President is entitled to go into the merits of the case
notwithstanding that it has been judicially concluded by the
consideration given to it by this Court.
....the power under Article 72 is of the widest amplitude, can
contemplate a myriad kinds and categories of cases with facts and
situations varying from case to case, in which the merits and
reasons of State may be profoundly assisted by prevailing
occasion and passing time. And it is of great significance that the
function itself enjoys high status in the constitutional scheme.”
3Page 39
20. In State (Govt. of NCT of Delhi) v. Prem Raj (2003) 7 SCC 121, this
Court was called upon to consider whether in a case involving conviction
under Section 7 read with Section 13(1)(d) of the Prevention of Corruption
Act, 1988, the High Court could commute the sentence of imprisonment on
deposit of a specified amount by the convict and direct the State Government
to pass appropriate order under Section 433(c) Cr.P.C. The two-Judge Bench
referred to some of the provisions of the Cr.P.C. as also Articles 72 and 161 of
the Constitution and observed:
“A pardon is an act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts the
individual on whom it is bestowed from the punishment the law
inflicts for a crime he has committed. It affects both the
punishment prescribed for the offence and the guilt of the
offender; in other words, a full pardon may blot out the guilt
itself. It does not amount to an acquittal unless the court
otherwise directs. Pardon is to be distinguished from “amnesty”
which is defined as “general pardon of political prisoners; an act
of oblivion”. As understood in common parlance, the word
“amnesty” is appropriate only where political prisoners are
released and not in cases where those who have committed
felonies and murders are pardoned.
xxxx xxxx xxxx
“Pardon is one of the many prerogatives which have been
recognized since time immemorial as being vested in the
Sovereign, wherever the sovereignty might lie.” This sovereign
power to grant a pardon has been recognized in our Constitution
in Articles 72 and 161, and also in Sections 432 and 433 of the
Code. Grant of pardon to an accomplice under certain conditions
as contemplated by Section 306 of the Code is a variation of this
very power. The grant of pardon, whether it is under Article 161
or 72 of the Constitution or under Sections 306, 432 and 433 is
the exercise of sovereign power.”
3Page 40
21. In Epuru Sudhakar v. Government of A.P. (supra), which was also decided by
a two-Judge Bench, Arijit Pasayat, J. referred to Section 295 of the
Government of India Act, 1935, Articles 72 and 161 of the Constitution, 59
American Jurisprudence (2nd Edition), Corpus Juris Secundum Vol. 67-A,
Wade Administrative Law (9th Edition), Maru Ram’s case, Kehar Singh’s case
and reiterated the views expressed by him in Prem Raj’s case on the nature of
the power vested in the President and the Governor under Articles 72 and 161
of the Constitution. In his concurring judgment, S. H. Kapadia, J (as he then
was) observed:
“Pardons, reprieves and remissions are manifestation of the
exercise of prerogative power. These are not acts of grace. They
are a part of constitutional scheme. When a pardon is granted, it
is the determination of the ultimate authority that public welfare
will be better served by inflicting less than what the judgment
has fixed.
The power to grant pardons and reprieves was traditionally a
royal prerogative and was regarded as an absolute power. At the
same time, even in the earlier days, there was a general rule that
if the king is deceived, the pardon is void, therefore, any
separation of truth or suggestion of falsehood vitiated the
pardon. Over the years, the manifestation of this power got
diluted.
Exercise of executive clemency is a matter of discretion and yet
subject to certain standards. It is not a matter of privilege. It is a
matter of performance of official duty. It is vested in the
President or the Governor, as the case may be, not for the
benefit of the convict only, but for the welfare of the people who
may insist on the performance of the duty. This discretion,
therefore, has to be exercised on public considerations alone.
The President and the Governor are the sole judges of the
sufficiency of facts and of the appropriateness of granting the
pardons and reprieves. However, this power is an enumerated
4Page 41
power in the Constitution and its limitations, if any, must be
found in the Constitution itself. Therefore, the principle of
exclusive cognizance would not apply when and if the decision
impugned is in derogation of a constitutional provision. This is
the basic working test to be applied while granting pardons,
reprieves, remissions and commutations.
Granting of pardon is in no sense an overturning of a judgment
of conviction, but rather it is an executive action that mitigates or
sets aside the punishment for a crime. It eliminates the effect of
conviction without addressing the defendant's guilt or innocence.
The controlling factor in determining whether the exercise of
prerogative power is subject to judicial review is not its source
but its subject-matter. It can no longer be said that prerogative
power is ipso facto immune from judicial review. An undue
exercise of this power is to be deplored. Considerations of
religion, caste or political loyalty are irrelevant and fraught with
discrimination. These are prohibited grounds. The Rule of Law
is the basis for evaluation of all decisions. The supreme quality
of the Rule of Law is fairness and legal certainty. The principle
of legality occupies a central plan in the Rule of Law. Every
prerogative has to be subject to the Rule of Law. That rule
cannot be compromised on the grounds of political expediency.
To go by such considerations would be subversive of the
fundamental principles of the Rule of Law and it would amount
to setting a dangerous precedent. The Rule of Law principle
comprises a requirement of “Government according to law”. The
ethos of “Government according to law” requires the prerogative
to be exercised in a manner which is consistent with the basic
principle of fairness and certainty. Therefore, the power of
executive clemency is not only for the benefit of the convict, but
while exercising such a power the President or the Governor, as
the case may be, has to keep in mind the effect of his decision on
the family of the victims, the society as a whole and the
precedent it sets for the future.
The power under Article 72 as also under Article 161 of the
Constitution is of the widest amplitude and envisages myriad
kinds and categories of cases with facts and situations varying
from case to case. The exercise of power depends upon the facts
and circumstances of each case and the necessity or justification
for exercise of that power has to be judged from case to case. It
is important to bear in mind that every aspect of the exercise of
4Page 42
the power under Article 72 as also under Article 161 does not
fall in the judicial domain. In certain cases, a particular aspect
may not be justiciable. However, even in such cases there has to
exist requisite material on the basis of which the power is
exercised under Article 72 or under Article 161 of the
Constitution, as the case may be. In the circumstances, one
cannot draw the guidelines for regulating the exercise of the
power.”
22. The propositions which can be culled out from the ratio of the above
noted judgments are:
(i) the power vested in the President under Article 72 and the Governor
under Article 161 of the Constitution is manifestation of prerogative of the
State. It is neither a matter of grace nor a matter of privilege, but is an
important constitutional responsibility to be discharged by the highest
executive keeping in view the considerations of larger public interest and
welfare of the people.
(ii) while exercising power under Article 72, the President is required to act
on the aid and advice of the Council of Ministers. In tendering its advice to
the President, the Central Government is duty bound to objectively place the
case of the convict with a clear indication about the nature and magnitude of
the crime committed by him, its impact on the society and all incriminating and
extenuating circumstances. The same is true about the State Government,
which is required to give advice to the Governor to enable him to exercise
power under Article 161 of the Constitution. On receipt of the advice of the
Government, the President or the Governor, as the case may be, has to take a
4Page 43
final decision in the matter. Although, he/she cannot overturn the final verdict
of the Court, but in appropriate case, the President or the Governor, as the case
may be, can after scanning the record of the case, form his/her independent
opinion whether a case is made out for grant of pardon, reprieve, etc.. In any
case, the President or the Governor, as the case may be, has to take
cognizance of the relevant facts and then decide whether a case is made out for
exercise of power under Article 72 or 161 of the Constitution.
Re: Question Nos. (b) and (c):
23. These questions merit simultaneous consideration. But, before doing
that, we may take cognizance of paragraphs I to VII of the instructions issued
by the Government of India regarding the procedure to be observed by the
States for dealing with the petitions for mercy from or on behalf of the convicts
under sentence of death, which are extracted below:
“INSTRUCTIONS REGARDING PROCEDURE TO BE OBSERVED BY
THE STATES FOR DEALING WITH PETITIONS FOR MERCY FROM OR
ON BEHALF OF CONVICTS UNDER SENTENCE OF DEATII AND WITH
APPEALS TO THE SUPREME COURT AND APPLICATIONS FOR
SPECIAL LEAVE TO APPEAL TO THAT COURT BY SUCH CONVICTS.
____________________
A. PETITIONS FOR MERCY.
I. A convict under sentence of death shall be allowed, if he has not
already submitted a petition for mercy, for the preparation and
submission of a petition for mercy, seven days after, and exclusive of,
the date on which the Superintendent of Jail informs him of the
dismissal by the Supreme Court of his appeal or of his application for
special leave to appeal to the Supreme Court.
4Page 44
Provided that in cases where no appeal to the Supreme Court has been
preferred or no application for special leave to appeal to the Supreme
Court has been lodged, the said period of seven days shall be
computed from the date next after the date on which the period allowed
for an appeal to the Supreme Court or for lodging an application for
special leave to appeal to the Supreme Court expires.
II. If the convict submits a petition within the above period, it shall be
addressed: —
(a) in the case of States to the Governor of the State (Sadar-i-Riyasat in
the case of Jammu and Kashmir) and the President of India: and
(b) in the case of Union Territories to the President of India.
The execution of sentence shall in all cases be postponed pending
receipt of their orders.
III The petition shall in the first instance: —
(a) in the case of States be sent to the State Government concerned for
consideration and orders of the Governor (Sadar-i-Riyasat in the case of
Jammu and Kashmir). If after consideration it is rejected it shall be
forwarded to the Secretary to the Government of India. Ministry of Home
Affairs. If it is decided to commute the sentence of death, the petition
addressed to the President of India shall be withheld and an intimation of
the fact shall be sent to the petitioner;
Note:—The petition made in a case where the
sentence of death is for an offence against any law
exclusively relatable to a matter to which the
executive power of the Union extends, shall not be
considered by the State Government but shall
forthwith be forwarded to the Secretary to the
Government of India, Ministry of Home Affairs.
(b) in the case of Union Territories, be sent to the Lieut.-Governor/
Chief Commissioner/Administrator who shall forward it to the Secretary
to the Government of India, Ministry of Home Affairs, stating that the
execution has been postponed pending the receipt of the orders of the
President of India.
IV. If the convict submits the petition after the period prescribed by
Instruction I above, it will be within the discretion of the Chief
Commissioner or the Government of the State concerned, as the case
4Page 45
may be, to consider the petition and to postpone execution pending
such consideration and also to withhold or not to withhold the petition
addressed to the President. In the following circumstances, however,
the petition shall be forwarded to the Secretary to the Government of
India, Ministry of Home Affairs:
(i) if the sentence of death was passed by an appellate court on an
appeal against the convict's acquittal or as a result of an enhancement
of sentence by the appellate court, whether on its own motion or on an
application for enhancement of sentence, or
(ii) when there are any circumstances about the case, which, in
the opinion of the Lieut.-Governor/Chief Commissioner/Administrator or the
Government of the State concerned, as the case may be, render it
desirable that the President should have an opportunity of considering it, as
in cases of a political character and those in which for any special
reason considerable public interest has been aroused. When the
petition is forwarded to the Secretary to the Government of
India, Ministry of Home Affairs, the execution shall simultaneously be
postponed pending receipt of orders of the President thereon.
V. In all cases in which a petition for mercy from a convict under
sentence of death is to be forwarded to the Secretary to the
Government of India, Ministry of Home Affairs, the Lieut.-Governor/Chief
Commissioner/ Administrator or the Government of the State concerned,
as the case may be. shall forward such petition as expeditiously as possible
along with the records of the case and his or its observations in respect of
any of the grounds urged in the petition. In the case of States, the
Government of the State concerned shall, if it had previously rejected any
petition addressed to itself or the Governor/Sadar-i-Riyasat, also
forward a brief statement of the reasons for the rejection of the previous
petition or petitions.
VI. Upon the receipt of the orders of the President, an acknowledgment
shall be sent to the Secretary to the Government of India. Ministry of
Home Affairs, immediately in the manner hereinafter provided. In the
case of Assam and the Andaman and Nicobar Islands, all orders will be
communicated by telegram and the receipt thereof shall be
acknowledged by telegram. In the case of other States and Union
Territories, if the petition is rejected, the orders will be communicated
by express letter and receipt thereof shall be acknowledged by express
letter. Orders commuting the death sentence will be communicated by
4Page 46
express letter in the case of Delhi and by telegram in all other cases
and receipt thereof shall be acknowledged by express letter or
telegram, as the case may be.
VII. A petition submitted by a convict shall be withheld by the Lieut.-
Governor/Chief Commissioner/Administrator or the Government of the
State concerned, as the case may be, if a petition containing a similar
prayer has already been submitted to the President. When a petition is
so withheld the petitioner shall be informed of the fact and of the reason
for withholding it.”
24. The above reproduced instructions give a clear indication of the
seriousness with which the authorities entrusted with the task of accepting the
mercy petitions are required to process the same without any delay.
25. The question whether delay in the judicial process constitutes a ground
for alteration of death sentence into life imprisonment has been considered in
several cases. In Piare Dusadh v. Emperor AIR 1944 FC 1, the Federal Court
of India altered the death sentence into one of transportation for life on the
ground that the appellant had been awaiting the execution of death sentence for
over one year. While vacating the death penalty, similar approach was adopted
in Vivian Rodrick’s case, Neiti Sreeramulu’s case, Ediga Anamma’s case,
State of U.P. v. Suresh (supra), State of U.P. v. Lalla Singh (1978) 1 SCC 142,
Bhagwan Bux Singh v. State of U.P. (1978) 1 SCC 214, Sadhu Singh v. State
of U.P. (supra) and State of U.P. v. Sahai (1982) 1 SCC 352.
26. In Ediga Anamma’s case, the appellant was found guilty of killing his
own wife and a two year old child. After approving the reasons recorded by
4Page 47
the trial Court and the High Court for holding the appellant guilty, this Court
referred to Section 354(3) Cr.P.C., which casts a duty upon the Court to give
special reasons for awarding death penalty as also the judgment in Jagmohan
Singh’s case and observed:
“Jagmohan Singh has adjudged capital sentence constitutional
and whatever our view of the social invalidity of the death
penalty, personal predilections must bow to the law as by this
Court declared, adopting the noble words of Justice Stanley
Mosk of California uttered in a death sentence case: “As a
judge, I am bound to the law as I find it to be and not as I
fervently wish it to be”. (The Yale Law Journal, Vol. 82, No. 6,
p. 1138.)
xxxx xxxx xxxx
Where the murderer is too young or too old the clemency of
penal justice helps him. Where the offender suffers from socioeconomic, psychic or penal compulsions insufficient to attract a
legal exception or to downgrade the crime into a lesser one,
judicial commutation is permissible. Other general social
pressures, warranting judicial notice, with an extenuating impact
may, in special cases, induce the lesser penalty. Extraordinary
features in the judicial process, such as that the death sentence
has hung over the head of the culprit excruciatingly long, may
persuade the Court to be compassionate. Likewise, if others
involved in the crime and similarly situated have received the
benefit of life imprisonment or if the offence is only constructive,
being under Section 302, read with Section 149, or again the
accused has acted suddenly under another's instigation, without
premeditation, perhaps the Court may humanly opt for life, even
like where a just cause or real suspicion of wifely infidelity
pushed the criminal into the crime. On the other hand, the
weapons used and the manner of their use, the horrendous
features of the crime and hapless, helpless state of the victim,
and the like, steel the heart of the law for a sterner sentence. We
cannot obviously feed into a judicial computer all such situations
since they are astrological imponderables in an imperfect and
undulating society. A legal policy on life or death cannot be left
for ad hoc mood or individual predilection and so we have
sought to objectify to the extent possible, abandoning retributive
4Page 48
ruthlessness, amending the deterrent creed and accenting the
trend against the extreme and irrevocable penalty of putting out
life.”
(emphasis supplied)
27. In T.V. Vatheeswaran’s case, on which learned senior counsel for the
petitioner and the learned Amicus Shri Ram Jethmalani placed heavy reliance,
the two Judge Bench considered whether the appellant, who was convicted for
an offence of murder and sentenced to death in January, 1975 and was kept in
solitary confinement for about 8 years was entitled to commutation of death
sentence. The Court prefaced consideration of the appellant’s plea by making
the following observations:
“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 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 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, 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?”
4Page 49
The Bench then referred to the judgments noted hereinabove, the minority
view of Lord Scarman and Lord Brightman in Noel Riley v. Attorney General
(supra) and 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 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.”
After noticing some more judgments, the Bench observed:
“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). Analogy of American law is not permissible, but
interpreting our Constitution sui generis, as we are bound to do,
4Page 50
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.”
(emphasis supplied)
28. In K.P. Mohd.’s case, a Bench headed by the then Chief Justice Y.V.
Chandrachud noted that the petitioner who was sentenced to death had filed a
petition under Article 72 of the Constitution in 1978 but the same was not
decided for the next four and half years. The writ petition filed by the
petitioner for commutation of death sentence into life imprisonment was
adjourned by the Court from time to time with the hope that the Government
will expedite its process and dispose of the mercy petition at an early date.
Notwithstanding this, the mercy petition was not decided. After waiting for a
sufficiently long period, the Court commuted the death sentence into life
imprisonment by recording the following observations:
“.... It is perhaps time for accepting a self-imposed rule of
discipline that mercy petitions shall be disposed of within, say,
three months. These delays are gradually creating serious social
problems by driving the courts to reduce death sentences even in
those rarest of rare cases in which, on the most careful,
dispassionate and humane considerations death sentence was
found to be the only sentence called for. The expectation of
persons condemned to death that they still have a chance to live
is surely not of lesser, social significance than the expectation of
contestants to an election petition that they will one day vote on
the passing of a bill.
5Page 51
Considering all the circumstances of the case, including those
concerning the background and motivation of the crime in the
instant case, we are of the opinion that the death sentence
imposed upon the petitioner should be set aside and in its place
the sentence of life imprisonment should be passed. We direct
accordingly. It is needless to add that the death sentence
imposed upon the petitioner shall not be executed. It is however
necessary to add that we are not setting aside the death sentence
merely for the reason that a certain number of years have passed
after the imposition of the death sentence. We do not hold or
share the view that a sentence of death becomes inexecutable
after the lapse of any particular number of years.”
(emphasis supplied)
29. After 13 days, a three-Judge Bench headed by the Chief Justice
delivered the judgment titled Sher Singh v. State of Punjab (1983) 2 SCC 344.
The petitioners in that case were convicted under Section 302 read with
Section 34 IPC and were sentenced to death by the trial Court. The High
Court reduced the sentence imposed on one of them to life imprisonment but
upheld the sentence of death imposed on the remaining two accused. The
petitioners then challenged the constitutional validity of Section 302 IPC.
Their petition was dismissed by this Court. Soon thereafter, they filed writ
petition for commutation of death sentence by relying upon the judgment in T.
V. Vatheeswaran’s case. The three-Judge Bench broadly agreed with the ratio
of the judgment in T.V. Vatheeswaran’s case, but refused to lay down any
hard and fast rule for commutation of death sentence into life imprisonment on
the ground of delay in the Court processes. Some of the passages of the
judgment in Sher Singh’s case are extracted below:
5Page 52
“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 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.
The fact that it is permissible to impose the death sentence in
appropriate cases does not, however, lead to the conclusion that
the sentence must be executed in every case in which it is
upheld, regardless of the events which have happened since the
imposition or the upholding of that sentence. The inordinate
delay in the execution of the sentence is one circumstance which
has to be taken into account while deciding whether the death
sentence ought to be allowed to be executed in a given case.”
(emphasis supplied)
The area of disagreement between the two-Judge Bench, which decided T.V.
Vatheeswaran’s case and the three-Judge Bench, which decided Sher Singh’s
case is reflected in the following observations made in the latter judgment:
“What we have said above delineates the broad area of
agreement between ourselves and our learned Brethren who
decided Vatheeswaran. We must now indicate with precision the
narrow area wherein we feel constrained to differ from them and
the reasons why. Prolonged delay in the execution of a death
sentence is unquestionably an important consideration for
determining whether the sentence should be allowed to be
executed. But, according to us, no hard and fast rule can be laid
down as our learned Brethren have done that “delay exceeding
two years in the execution of a sentence of death should be
5Page 53
considered sufficient to entitle the person under sentence to
death to invoke Article 21 and demand the quashing of the
sentence of death”. This period of two years purports to have
been fixed in Vatheeswaran after making “all reasonable
allowance for the time necessary for appeal and consideration of
reprieve”. With great respect, we find it impossible to agree with
this part of the judgment. One has only to turn to the statistics of
the disposal of cases in the High Court and the Supreme Court to
appreciate that a period far exceeding two years is generally
taken by those Courts together for the disposal of matters
involving even the death sentence. Very often, four or five years
elapse between the imposition of death sentence by the Sessions
Court and the disposal of the special leave petition or an appeal
by the Supreme Court in that matter. This is apart from the time
which the President or the Governor, as the case may be, takes
to consider petitions filed under Article 72 or Article 161 of the
Constitution or the time which the Government takes to dispose
of applications filed under Sections 432 and 433 of the Code of
Criminal Procedure. It has been the sad experience of this Court
that no priority whatsoever is given by the Government of India
to the disposal of petitions filed to the President under Article 72
of the Constitution. Frequent reminders are issued by this Court
for an expeditious disposal of such petitions but even then the
petitions remain undisposed of for a long time. Seeing that the
petition for reprieve or commutation is not being attended to and
no reason is forthcoming as to why the delay is caused, this
Court is driven to commute the death sentence into life
imprisonment out of a sheer sense of helplessness and
frustration. Therefore, with respect, the fixation of the 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.
Apart from the fact that the rule of two years runs in the teeth of
common experience as regards the time generally occupied by
proceedings in the High Court, the Supreme Court and before
the executive authorities, we are of the opinion that no absolute
or unqualified rule can be laid down that in every case in which
there is a long delay in the execution of a death sentence, the
sentence must be substituted by the sentence of life
imprisonment. There are several other factors which must be
taken into account while considering the question as to whether
the death sentence should be vacated. A convict is undoubtedly
5Page 54
entitled to pursue all remedies lawfully open to him to get rid of
the sentence of death imposed upon him and indeed, there is no
one, be he blind, lame, starving or suffering from a terminal
illness, who does not want to live. The Vinoba Bhaves, who
undertake the “Prayopaveshana” do not belong to the world of
ordinary mortals. Therefore, it is understandable that a convict
sentenced to death will take recourse to every remedy which is
available to him under the law to ask for the commutation of his
sentence, even after the death sentence is finally confirmed by
this Court by dismissing his special leave petition or appeal. But,
it is, at least, relevant to consider whether the delay in the
execution of the death sentence is attributable to the fact that he
has resorted to a series of untenable proceedings which have the
effect of defeating the ends of justice. It is not uncommon that a
series of review petitions and writ petitions are filed in this Court
to challenge judgments and orders which have assumed finality,
without any seeming justification. Stay orders are obtained in
those proceedings and then, at the end of it all, comes the
argument that there has been prolonged delay in implementing
the judgment or order. We believe that the Court called upon to
vacate a death sentence on the ground of delay caused in
executing that sentence must find why the delay was caused and
who is responsible for it. If this is not done, the law laid down
by this Court will become an object of ridicule by permitting a
person to defeat it by resorting to frivolous proceedings in order
to delay its implementation. And then, the rule of two years will
become a handy tool for defeating justice. The death sentence
should not, as far as possible, be imposed. But, in that rare and
exceptional class of cases wherein that sentence is upheld by this
Court, the judgment or order of this Court ought not to be
allowed to be defeated by applying any rule of thumb.
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 execution 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.”
(emphasis supplied)
5Page 55
30. In Javed Ahmed v. State of Maharashtra (supra), a two-Judge Bench
presided over by O. Chinnappa Reddy, J., who had authored the judgment in
T.V. Vatheeswaran’s case, while reiterating the proposition laid down in T.V.
Vatheeswaran’s case, the learned Judge proceeded to doubt the competence of
the larger Bench to what he termed as overruling of the two-Judge Bench
judgment.
31. Although, the question whether delay in disposal of the petitions filed
under Articles 72 and 161 of the Constitution constitutes a valid ground for
commutation of sentence of death into life imprisonment did not arise for
consideration in T.V. Vatheeswaran’s case, Sher Singh’s case or Javed
Ahmed’s case and only a passing reference was made in the last paragraph of
the judgment in T.V. Vatheeswaran’s case, the conflicting opinions expressed
in those cases on the Court’s power to commute the sentence of death into life
imprisonment on the ground of delay simpliciter resulted in a reference to the
Constitution Bench in Triveniben’s case which related to the exercise of power
by the President under Article 72 and by the Governor under Article 161 of the
Constitution. After hearing the arguments, the Constitution Bench expressed its
opinion in the following words:
“Undue long delay in execution of the sentence of death will
entitle the condemned person to approach this Court under
Article 32 but this Court will only examine the nature of delay
caused and circumstances that ensued after sentence was finally
confirmed by the judicial process and will have no jurisdiction to
5Page 56
reopen 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 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 case cannot be said to lay down the
correct law and therefore to that extent stands overruled.”
(This order is reported in (1988) 4 SCC 574)
32. In paragraph 13 of the main judgment G.L. Oza, J., noted the argument
made on behalf of the petitioners that delay causes immense mental torture to a
condemned prisoner and observed:
“.............It is no doubt true that sometimes in these procedures
some time is taken and sometimes even long time is spent. May
be for unavoidable circumstances and sometimes even at the
instance of the accused but it was contended and rightly so that
all this delay up to the final judicial process is taken care of
while the judgment is finally pronounced and it could not be
doubted that in number of cases considering (sic) the time that
has elapsed from the date of the offence till the final decision has
weighed with the courts and lesser sentence awarded only on
this account.”
The learned Judge then observed that while considering the question of delay
after the final verdict is pronounced, the time spent on petitions for review and
repeated mercy petitions at the instance of the convicted person himself shall
not be considered and the only delay which would be material for
consideration will be the delay in disposal of the mercy petitions or delay
occurring at the instance of the executive.
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33. While rejecting the argument that keeping a condemned prisoner in jail
amounts to double jeopardy, Oza, J., referred to Section 366 Cr.P.C. and held
that when a person is committed to jail awaiting the execution of the sentence
of death, it is not an imprisonment but the prisoner has to be kept secured till
the sentence awarded by the Court is executed. The learned Judge also
rejected the argument that delay in execution of the sentence entitles a prisoner
to approach this Court because his right under Article 21 is infringed and
observed:
“………..the only jurisdiction which could be sought to be
exercised by a prisoner for infringement of his rights can be to
challenge the subsequent events after the final judicial verdict is
pronounced and it is because of this that on the ground of long or
inordinate delay a condemned prisoner could approach this
Court and that is what has consistently been held by this Court.
But it will not be open to this Court in exercise of jurisdiction
under Article 32 to go behind or to examine the final verdict
reached by a competent court convicting and sentencing the
condemned prisoner and even while considering the
circumstances in order to reach a conclusion as to whether the
inordinate delay coupled with subsequent circumstances could
be held to be sufficient for coming to a conclusion that execution
of the sentence of death will not be just and proper. The nature
of the offence, circumstances in which the offence was
committed will have to be taken as found by the competent court
while finally passing the verdict. It may also be open to the court
to examine or consider any circumstances after the final verdict
was pronounced if it is considered relevant………….”
34. K. Jagannatha Shetty, J., who delivered a concurring opinion referred to
the jurisprudential development in other countries on the issue of execution of
the sentence of death and observed:
5Page 58
“Under Article 72 of the Constitution, the President shall have
the power to “grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any
person convicted of any offence”. Under Article 161 of the
Constitution, similar is the power of the Governor to give relief
to any person convicted of any offence against any law relating
to a matter to which the executive power of the State extends.
The time taken by the executive for disposal of mercy petitions
may depend upon the nature of the case and the scope of enquiry
to be made. It may also depend upon the number of mercy
petitions submitted by or on behalf of the accused. The court,
therefore, cannot prescribe a time-limit for disposal of even for
mercy petitions.
It is, however, necessary to point out that Article 21 is relevant
at all stages. This Court has emphasised that “the speedy trial in
criminal cases though not a specific fundamental right, is implicit
in the broad sweep and content of Article 21”. Speedy trial is a
part of one's fundamental right to life and liberty. This principle,
in my opinion, is no less important for disposal of mercy
petition. It has been universally recognised that a condemned
person has to suffer a degree of mental torture even though there
is no physical mistreatment and no primitive torture. He may be
provided with amenities of ordinary inmates in the prison as
stated in Sunil Batra v. Delhi Admn., but nobody could succeed
in giving him peace of mind.
Chita Chinta Dwayoormadhya,
Chinta Tatra Gariyasi,
Chita Dahati Nirjivam,
Chinta Dahati Sajeevakam.
As between funeral fire and mental worry, it is the latter which is
more devastating, for, funeral fire burns only the dead body
while the mental worry burns the living one. This mental torment
may become acute when the judicial verdict is finally set against
the accused. Earlier to it, there is every reason for him to hope
for acquittal. That hope is extinguished after the final verdict. If,
therefore, there is inordinate delay in execution, the condemned
prisoner is entitled to come to the court requesting to examine
whether it is just and fair to allow the sentence of death to be
executed.
....................................................... The court while examining
the matter, for the reasons already stated, cannot take into
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account the time utilised in the judicial proceedings up to the
final verdict. The court also cannot take into consideration the
time taken for disposal of any petition filed by or on behalf of
the accused either under Article 226 or under Article 32 of the
Constitution after the final judgment affirming the conviction and
sentence. The court may only consider whether there was undue
long delay in disposing of mercy petition ; whether the State was
guilty of dilatory conduct and whether the delay was for no
reason at all. The inordinate delay, may be a significant factor,
but that by itself cannot render the execution unconstitutional.
Nor it can be divorced from the dastardly and diabolical
circumstances of the crime itself.........”
(emphasis supplied)
35. In Madhu Mehta v. Union of India (supra), this Court commuted the
death sentence awarded to one Gyasi Ram, who had killed a Government
servant, namely, Bhagwan Singh (Amin), who had attached his property for
recovery of arrears of land revenue. After disposal of the criminal appeal by
this Court, the wife of the convict filed a mercy petition in 1981. The same
remained pending for 8 years. This Court considered the writ petition filed by
the petitioner Madhu Mehta, who was the national convener of Hindustani
Andolan, referred to the judgments in T.V. Vatheeswaran’s case, Sher Singh’s
case and Triveniben’s case and held that in the absence of sufficient
explanation, the death sentence should be converted into life imprisonment.
36. The facts of Daya Singh’s case were that the petitioner had been
convicted and sentenced to death for murdering Sardar Pratap Singh Kairon.
The sentence was confirmed by the High Court and the special leave petition
was dismissed by this Court. After rejection of the review petition, he filed
5Page 60
mercy petitions before the Governor and the President of India, which were
also rejected. The writ petition filed by his brother Lal Singh was dismissed
along with Triveniben’s case. Thereafter, he filed another mercy petition
before the Governor of Haryana in November, 1988. The matter remained
pending for next two years. Finally, he sent a letter from Alipore Central Jail,
Calcutta to the Registry of this Court for commutation of the sentence of death
into life imprisonment. This Court took cognizance of the fact that the
petitioner was in jail since 1972 and substituted the sentence of imprisonment
for life in place of the death sentence.
37. The judgments of other jurisdictions, i.e., Riley v. Attorney General of
Jamaica, which has been cited in Rajendra Prasad’s case, Ediga Anamma’s case,
T.V. Vatheeswaran’s case and Sher Singh’s case, as also the judgment in Pratt
v. Attorney General of Jamaica, which has been referred to with approval in T.V.
Vatheeswaran’s case do not provide any assistance in deciding the questions
framed by us. The principle laid down in those cases is that delay in executing
a sentence of death makes the punishment inhuman and degrading and the
prisoner is entitled to seek intervention of the Court for release on the ground
that there was no explanation for inordinate delay. Similarly, the study
conducted by Roger Hood and Carolyn Hoyle of the University of Oxford,
which has been published with the title “The Death Penalty – A Worldwide
Perspective” does not advance the cause of the petitioner.
6Page 61
38. In the light of the above, we shall now consider the argument of Shri
K.T.S. Tulsi, learned senior counsel for the petitioner, and Shri Ram
Jethmalani and Shri Andhyarujina, Senior Advocates, who assisted the Court
as Amicus, that long delay of 8 years in disposal of the petition filed under
Article 72 should be treated as sufficient for commutation of the sentence of
death into life imprisonment, more so, because of prolonged detention, the
petitioner has become mentally sick. The thrust of the argument of the learned
senior counsel is that inordinate delay in disposal of mercy petition has
rendered the sentence of death cruel, inhuman and degrading and this is
nothing short of another punishment inflicted upon the condemned prisoner.
39. Though the argument appears attractive, on a deeper consideration of all
the facts, we are convinced that the present case is not a fit one for exercise of
the power of judicial review for quashing the decision taken by the President
not to commute the sentence of death imposed on the petitioner. Time and
again, (Machhi Singh’s case, Ediga Anamma’s case, Sher Singh’s case and
Triveniben’s case), it has been held that while imposing punishment for murder
and similar type of offences, the Court is not only entitled, but is duty bound to
take into consideration the nature of the crime, the motive for commission of
the crime, the magnitude of the crime and its impact on the society, the nature
of weapon used for commission of the crime, etc.. If the murder is committed
in an extremely brutal or dastardly manner, which gives rise to intense and
extreme indignation in the community, the Court may be fully justified in
6Page 62
awarding the death penalty. If the murder is committed by burning the bride
for the sake of money or satisfaction of other kinds of greed, there will be
ample justification for awarding the death penalty. If the enormity of the crime
is such that a large number of innocent people are killed without rhyme or
reason, then too, award of extreme penalty of death will be justified. All these
factors have to be taken into consideration by the President or the Governor, as
the case may be, while deciding a petition filed under Article 72 or 161 of the
Constitution and the exercise of power by the President or the Governor, as the
case may be, not to entertain the prayer for mercy in such cases cannot be
characterized as arbitrary or unreasonable and the Court cannot exercise power
of judicial review only on the ground of undue delay.
40. We are also of the view that the rule enunciated in Sher Singh’s case,
Triveniben’s case and some other judgments that long delay may be one of the
grounds for commutation of the sentence of death into life imprisonment
cannot be invoked in cases where a person is convicted for offence under
TADA or similar statutes. Such cases stand on an altogether different plane
and cannot be compared with murders committed due to personal animosity or
over property and personal disputes. The seriousness of the crimes committed
by the terrorists can be gauged from the fact that many hundred innocent
civilians and men in uniform have lost their lives. At times, their objective is
to annihilate their rivals including the political opponents. They use bullets,
bombs and other weapons of mass killing for achieving their perverted political
6Page 63
and other goals or wage war against the State. While doing so, they do not
show any respect for human lives. Before killing the victims, they do not think
even for a second about the parents, wives, children and other near and dear
ones of the victims. The families of those killed suffer the agony for their
entire life, apart from financial and other losses. It is paradoxical that the
people who do not show any mercy or compassion for others plead for mercy
and project delay in disposal of the petition filed under Article 72 or 161 of the
Constitution as a ground for commutation of the sentence of death. Many
others join the bandwagon to espouse the cause of terrorists involved in
gruesome killing and mass murder of innocent civilians and raise the bogey of
human rights.
Question No.(d):
41. While examining challenge to the decision taken by the President under
Article 72 or the Governor under Article 161 of the Constitution, as the case
may be, the Court’s power of judicial review of such decision is very limited.
The Court can neither sit in appeal nor exercise the power of review, but can
interfere if it is found that the decision has been taken without application of
mind to the relevant factors or the same is founded on the extraneous or
irrelevant considerations or is vitiated due to malafides or patent arbitrariness –
Maru Ram v. Union of India, (1981) 1 SCC 107, Kehar Singh v. Union of India
(1989) 1 SCC 204, Swaran Singh v. State of U.P. (1998) 4 SCC 75, Satpal v. State of
Haryana (2000) 5 SCC 170, Bikas Chatterjee v. Union of India (2004) 7 SCC 634, Epuru
6Page 64
Sudhakar v. Government of A.P. (2006) 8 SCC 161 and Narayan Dutt v. State of Punjab
(2011) 4 SCC 353.
42. So far as the petitioner is concerned, he was convicted for killing 9
innocent persons and injuring 17 others. The designated Court found that the
petitioner and other members of Khalistan Liberation Front, namely, Kuldeep,
Sukhdev Singh, Harnek and Daya Singh Lahoria were responsible for the
blast. Their aim was to assassinate Shri M.S. Bitta, who was lucky and
escaped with minor injuries. While upholding the judgment of the designated
Court, the majority of this Court referred to the judgments in Bachan Singh’s
case and observed:
“From Bachan Singh v. State of Punjab and Machhi Singh v.
State of Punjab the principle culled out is that
when the
collective conscience of the community is so shocked, that it will
expect the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty, the same can
be awarded.
It was observed:
The community may entertain such sentiment in the following
circumstances:
(1) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting, or dastardly manner so as to
arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces
total depravity and meanness; e.g. murder by hired assassin for
money or reward; or cold-blooded murder for gains of a person
vis-à-vis whom the murderer is in a dominating position or in a
position of trust; or murder is committed in the course for
betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority
community etc. is committed not for personal reasons but in
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circumstances which arouse social wrath; or in cases of ‘bride
burning’ or ‘dowry deaths’ or when murder is committed in
order to remarry for the sake of extracting dowry once again or
to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance
when multiple murders, say of all or almost all the members of a
family or a large number of persons of a particular caste,
community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless
woman or old or infirm person or a person vis-à-vis whom the
murderer is in a dominating position, or a public figure generally
loved and respected by the community.
If upon taking an overall global view of all the circumstances in
the light of the aforesaid propositions and taking into account the
answers to the questions posed by way of the test for the rarest
of rare cases, the circumstances of the case are such that death
sentence is warranted, the court would proceed to do so.”
43. The finding recorded by the majority on the issue of the petitioner’s guilt
is conclusive and, as held in Triveniben’s case and other cases, while deciding
the issue whether the sentence of death awarded to the accused should be
converted into life imprisonment, the Court cannot review such finding.
44. It is true that there was considerable delay in disposal of the petition
filed by the petitioner but, keeping in view the peculiar facts of the case, we
are convinced that there is no valid ground to interfere with the ultimate
decision taken by the President not to commute the sentence of death awarded
to the petitioner into life imprisonment. We can take judicial notice of the fact
that a substantial portion of the delay can well-nigh be attributed to the
6Page 66
unending spate of the petitions on behalf of the petitioner by various persons to
which reference has been made hereinabove.
45. On their part, the Government of NCT of Delhi and the Central
Government had made their respective recommendations within a period of
just over two years. The files produced before the Court show that the
concerned Ministries had, after threadbare examination of the factors like the
nature, magnitude and intensity of crime committed by the petitioner, the
findings recorded by the designated Court and this Court as also the plea put
forward by the petitioner and his supporters recommended that no clemency
should be shown to the person found guilty of killing 9 innocent persons and
injuring 17 others by using 40 kgs. RDX. While making the recommendation,
the Government had also considered the impact of such crimes on the public at
large. Unfortunately, the petition filed by the petitioner remained pending with
the President for almost 6 years, i.e., between May 2005 and May 2011.
During this period, immense pressure was brought upon the Government in the
form of representations made by various political and non-political
functionaries, organizations and several individuals from other countries. This
appears to be one of the reasons why the file remained pending in the
President’s Secretariat and no effort was made for deciding the petitioner’s
case. The figures made available through RTI inquiry reveal that during the
particular period, a large number of mercy petitions remained pending with the
President giving rise to unwarranted speculations. On its part, the Ministry of
6Page 67
Home Affairs also failed to take appropriate steps for reminding the
President’s Secretariat about the dire necessity of the disposal of the pending
petitions. What was done in April and May, 2011 could have been done in
2005 itself and that would have avoided unnecessary controversy. Be that as it
may, we are of the considered view that delay in disposal of the petition filed
by the petitioner under Article 72 does not justify review of the decision taken
by the President in May 2011 not to entertain his plea for clemency.
46. Though the documents produced by Shri K.T.S. Tulsi do give an
indication that on account of prolonged detention in jail after his conviction
and sentence to death, the petitioner has suffered physically and mentally, the
same cannot be relied upon for recording a finding that the petitioner’s mental
health has deteriorated to such an extent that the sentence awarded to him
cannot be executed.
47. Before parting with the judgment, we consider it necessary to take
cognizance of a rather disturbing phenomena.
The statistics produced by the
learned Additional Solicitor General show that between 1950 and 2009, over
300 mercy petitions were filed of which 214 were accepted by the President
and the sentence of death was commuted into life imprisonment. 69 petitions
were rejected by the President.
The result of one petition is obscure.
However, about 18 petitions filed between 1999 and 2011 remained pending
for a period ranging from 1 year to 13 years.
A chart showing the details of
such petitions is annexed with the Judgment as Schedule ‘A’.
The particulars
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contained in Schedule ‘A’ give an impression that the Government and the
President’s Secretariat have not dealt with these petitions with requisite
seriousness.
We hope and trust that in future such petitions will be disposed of
without unreasonable delay.
48. For the reasons stated above, we hold that the petitioners have failed to
make out a case for invalidation of the exercise of power by the President
under Article 72 of the Constitution not to accept the prayer for commutation
of the sentence of death into life imprisonment. The writ petitions are
accordingly dismissed.
...............................................................................J
.
(G.S. SINGHVI)
................................................................................
J.
(SUDHANSU JYOTI MUKHOPADHAYA)
New Delhi;
April 12, 2013
6Page 69
SCHEDULE ‘A’
Details of Mercy Petitions filed between 2009 and 2011, which remained pending till 12.5.2011.
S.No. Name of convicts
Date of
Supreme
Court
Judgment
Date Mercy Petition
received by MHA
Date Mercy
Petition
decided by the
President
Rejected /
Commuted /
Pendency
Period of
Pendency
1. Dharam Pal 18.03.1
999 1999
Pending
13 years
2.
Sheikh Meeran,
Selvam and
Radhakrishnan
21.06.1999
05.07.1999
(Review)
2000
Pending
12 years
3. Suresh and Ramji 03.02.2001 2002 Pending 10 years
4. Om Prakash 04.03.2003 2003 Pending 9 years
5. Lalila Doom and
Shivlal 20.02.2004 2004 Pending 8 years
6. Praveen Kumar 25.10.2003 2004 Pending 8 years
7. Madaiah and
Bilavandra 29.01.2004 2004 Pending 8 years
8.
Karan Singh and
Kunwar Bahadur
Singh
19.07.2005 2005
Pending
7 years
9. Jafar Ali 04.05.2004 2006 Pending 6 years
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S.No. Name of convicts
Date of
Supreme
Court
Judgment
Date Mercy Petition
received by MHA
Date Mercy
Petition
decided by the
President
Rejected /
Commuted /
Pendency
Period of
Pendency
10. Mohd. Afzal Guru 08.04.2005 2006 Pending 6 years
11. Bandu Baburao
Tidake 07.10.2006 2007 Pending 5 years
12. Gurmeet Singh 28.09.2005 2007 Pending 5 years
13. Saibanna Ningappa
Natikar 21.04.2005 2007 Pending 5 years
14. Satish 02.08.2005 2007 Pending 5 years
15. Sonia and Sanjeev 2007 Pending 5 years
16. Bantu 23.07.2008 2009 Pending 3 years
17. Prajeet Kumar 2011 Pending 1 year
18. Sunder Singh 2011 Pending 1 year
7
