Page 1 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 of

Page 2 the same as one of the punishments. The debate on this issue became more

intense in the second part of the 20

th

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Sabha but, after considerable debate, the same was withdrawn.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

2

Page 3 ‘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 35

th

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

3

Page 4 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

4

Page 5 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

5

Page 6 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.”

6

Page 7 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)

7

Page 8 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

8

Page 9 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

9

Page 10 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

1

Page 11 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

1

Page 12 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 “rarest-

of-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

1

Page 13 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

1

Page 14 (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’.

1

Page 15 (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,

1

Page 16 (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

1

Page 17 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

1

Page 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

1

Page 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.”

1

Page 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.

9.1After 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.

2

Page 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.

9.2Soon 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

2

Page 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.

9.3During 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.

9.4The 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.

2

Page 23 9.5In 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).

9.6On 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.

9.7After 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.

9.8On 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

2

Page 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.”

9.9After 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

2

Page 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

2

Page 26 8. With reference to the above figure, it is submitted that

there were 28 Mercy petit ions 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

30

th

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 30

th

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

2

Page 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

2

Page 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

2

Page 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 4

th

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.

2

Page 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

3

Page 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

3

Page 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 in-

executable 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?

3

Page 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

3

Page 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

3

Page 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

3

Page 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

3

Page 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)

3

Page 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.”

3

Page 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.”

3

Page 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 (9

th

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

4

Page 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

4

Page 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

4

Page 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.

4

Page 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

4

Page 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 characterand 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

4

Page 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

4

Page 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 socio-

economic, 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

4

Page 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?”

4

Page 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,

4

Page 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.

5

Page 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:

5

Page 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

5

Page 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

5

Page 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)

5

Page 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

5

Page 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.

5

Page 57 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:

5

Page 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

5

Page 59 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 for the inordinate delay in disposal of the mercy petition, 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

5

Page 60 was dismissed by this Court. After rejection of the review petition, he filed

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.

6

Page 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

6

Page 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

6

Page 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

6

Page 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

6

Page 65 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

6

Page 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

6

Page 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

6

Page 68 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

6

Page 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 Ramji03.02.20012002 Pending 10 years

4.Om Prakash 04.03.20032003 Pending 9 years

5.

Lalila Doom and

Shivlal

20.02.20042004

Pending

8 years

6.Praveen Kumar 25.10.20032004 Pending 8 years

7.

Madaiah and

Bilavandra

29.01.20042004

Pending

8 years

8.

Karan Singh and

Kunwar Bahadur

Singh

19.07.20052005

Pending

7 years

9.Jafar Ali 04.05.20042006 Pending 6 years

6

Page 70 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 Guru08.04.20052006 Pending 6 years

11.

Bandu Baburao

Tidake

07.10.20062007

Pending

5 years

12.Gurmeet Singh 28.09.20052007 Pending 5 years

13.

Saibanna Ningappa

Natikar

21.04.20052007

Pending

5 years

14.Satish 02.08.20052007 Pending 5 years

15.Sonia and Sanjeev 2007 Pending 5 years

16.Bantu 23.07.20082009 Pending 3 years

17.Prajeet Kumar 2011 Pending 1 year

18.Sunder Singh 2011 Pending 1 year

7