Supreme Court of India
Devender Pal Singh Bhullar & Anr vs State Of Nct Of Delhi on 12 April, 2013
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 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 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 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) 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.”
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.”
21. In Epuru Sudhakar v. Government of A.P. (supra), which was also decided by a two-Judge Bench, Arijit Pasayat, J. referred to Section 295 of the Government of India Act, 1935, Articles 72 and 161 of the Constitution, 59 American Jurisprudence (2nd Edition), Corpus Juris Secundum Vol. 67-A, Wade Administrative Law (9th Edition), Maru Ram’s case, Kehar Singh’s case and reiterated the views expressed by him in Prem Raj’s case on the nature of the power vested in the President and the Governor under Articles 72 and 161 of the Constitution. In his concurring judgment, S. H. Kapadia, J (as he then was) observed:
“Pardons, reprieves and remissions are manifestation of the exercise of prerogative power. These are not acts of grace. They are a part of constitutional scheme. When a pardon is granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment has fixed.
The power to grant pardons and reprieves was traditionally a royal prerogative and was regarded as an absolute power. At the same time, even in the earlier days, there was a general rule that if the king is deceived, the pardon is void, therefore, any separation of truth or suggestion of falsehood vitiated the pardon. Over the years, the manifestation of this power got diluted.
Exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public considerations alone. The President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves. However, this power is an enumerated 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 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 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.
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 may be, to consider the petition and to postpone execution pending such consideration and also to withhold or not to withhold the petition addressed to the President. In the following circumstances, however, the petition shall be forwarded to the Secretary to the Government of India, Ministry of Home Affairs:
(i) if the sentence of death was passed by an appellate court on an appeal against the convict's acquittal or as a result of an enhancement of sentence by the appellate court, whether on its own motion or on an application for enhancement of sentence, or
(ii) when there are any circumstances about the case, which, in the opinion of the Lieut.-Governor/Chief Commissioner/Administrator or the Government of the State concerned, as the case may be, render it desirable that the President should have an opportunity of considering it, as in cases of a political character and those in which for any special reason considerable public interest has been aroused. When the petition is forwarded to the Secretary to the Government of India, Ministry of Home Affairs, the execution shall simultaneously be postponed pending receipt of orders of the President thereon.
V. In all cases in which a petition for mercy from a convict under sentence of death is to be forwarded to the Secretary to the Government of India, Ministry of Home Affairs, the Lieut.- Governor/Chief Commissioner/ Administrator or the Government of the State concerned, as the case may be. shall forward such petition as expeditiously as possible along with the records of the case and his or its observations in respect of any of the grounds urged in the petition. In the case of States, the Government of the State concerned shall, if it had previously rejected any petition addressed to itself or the Governor/Sadar-i-Riyasat, also forward a brief statement of the reasons for the rejection of the previous petition or petitions.
VI. Upon the receipt of the orders of the President, an acknowledgment shall be sent to the Secretary to the Government of India. Ministry of Home Affairs, immediately in the manner hereinafter provided. In the case of Assam and the Andaman and Nicobar Islands, all orders will be communicated by telegram and the receipt thereof shall be acknowledged by telegram. In the case of other States and Union Territories, if the petition is rejected, the orders will be communicated by express letter and receipt thereof shall be acknowledged by express letter. Orders commuting the death sentence will be communicated by 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 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 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?” 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, 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.
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:
“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 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 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)
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 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.
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:
“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.
[pic]Chita Chinta Dwayoormadhya, [pic]Chinta Tatra Gariyasi, [pic]Chita Dahati Nirjivam, [pic]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 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 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.
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 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 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.
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 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 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 unending spate of the petitions on behalf of the petitioner by various persons to which reference has been made hereinabove.
Supreme Court of India
Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors on 11 October, 2006
It is fairly well settled that the exercise or non-exercise of pardon power by the President or Governor, as the case may be, is not immune from judicial review. Limited judicial review is available in certain cases.
In Maru Ram's case (supra) it was held that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power.
It is noteworthy that in Kehar Singh's case (supra) the contention that the power of pardon can be exercised for political consideration was unequivocally rejected. In Maru Ram's case (supra) it was held that consideration of religion, caste, colour or political loyalty are totally irrelevant and fraught with discrimination.
In Kehar Singh's case (supra) it was held that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations delineated in Maru Ram's case (supra). The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the court.
In Kehar Singh's case (supra), placing reliance on the doctrine of the division (separation) of powers it was pleaded, that it was not open to the judiciary to scrutinize the exercise of the "mercy" power. In dealing with this submission this Court held that the question as to the area of the President's power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.
As regards the considerations to be applied to a petition for pardon/remission in Kehar Singh's case (supra) this Court observed as follows:
"As regards the considerations to be applied by the President to the petition, we need say nothing more as the law in this behalf has already been laid down by this Court in Maru Ram."
In the case of Swaran Singh v. State of U.P. [1998 (4) SCC 75] after referring to the judgments in the cases of Maru Ram's case (supra) and Kehar Singh's case (supra) this Court held as follows:
"we cannot accept the rigid contention of the learned counsel for the third respondent that this court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it."
The factual scenario in Swaran Singh's case (supra) needs to be noted. One Doodh Nath was found guilty of murdering one Joginder Singh and was convicted to imprisonment for life. His appeals to the High Court and Special Leave Petition to this Court were unsuccessful. However, within a period of less than 2 years the Governor of Uttar Pradesh granted remission of the remaining long period of his life sentence. This Court quashed the said order of the Governor on the ground that when the Governor was not posted with material facts, the Governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner. Conversely, the impugned order, it was observed "fringes on arbitrariness".
The Court held that if the pardon power "was exercise arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it". The Court further observed that when the order of the Governor impugned in these proceedings is subject to judicial review within the strict parameters laid down in Maru Ram's case (supra) and reiterated in Kehar Singh's case (supra): "we feel that the Governor shall reconsider the petition of Doodh Nath in the light of those materials which he had no occasion to know earlier.", and left it open to the Governor of Uttar Pradesh to pass a fresh order in the light of the observations made by this Court.
In the case of Satpal and Anr. v. State of Haryana and Ors. [2000 (5) SCC 170], this Court observed that the power of granting pardon under Article 161 is very wide and does not contain any limitation as to the time at which and the occasion on which and the circumstances in which the said powers could be exercised.
Thereafter the Court held as follows:
"the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is mala fide one or the Governor has passed the order on some extraneous consideration."
The principles of judicial review on the pardon power have been re-stated in the case of Bikas Chatterjee v. Union of lndia [2004 (7) SCC 634].
In Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 (7) SCC 622 it was inter-alia held as follows:
"25. This principle was reiterated in Tata Cellular v. Union of India (1994 (6) SCC 651 in which it was, inter alia, laid down that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?;
2. committed an error of law;
3. committed a breach of the rules of natural justice;
4. reached a decision which no reasonable tribunal would have reached; or
5. abused its powers.
26. In this case, Lord Denning was quoted as saying: (SCC pp. 681-82, para 83) "Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the courts will not themselves take the place of the body to whom Parliament has entrusted the decision. The courts will not themselves embark on a rehearing of the matter. See Healey v. Minister of Health (1955 (1) QB
27. Lord Denning further observed as under: (p. 682) "If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the court will interfere. See Padfield vs. Minister of Agriculture, Fisheries and Food (1968 AC 997).
28. In Sterling Computers Ltd. v. M&N Publications Ltd. ((1993 (1) SCC 445) it was pointed out that while exercising the power of judicial review, the Court is concerned primarily as to whether there has been any infirmity in the decision-making process? In this case, the following passage from Professor Wade's Administrative Law was relied upon: (SCC p. 457, para 17) "The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended."
29. It may be pointed out that this principle was also applied by Professor Wade to quasi- judicial bodies and their decisions. Relying upon decision in R. v. Justices of London(1895 1 QB 214). Professor Wade laid down the principle that where a public authority was given power to determine matter, mandamus would not lie to compel it to reach some particular decision.
30. A Division Bench of this Court comprising Kuldip Singh and B.P. Jeevan Reddy, JJ. in U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd. (1993 (2) SCC 299) observed as under: (SCC pp. 306-07, para 11) "11. The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-
judicial authorities are bound to observe. It is true that the distinction between a quasi-
judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak v. Union of India (1969 (2) SCC 262). Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-
judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have 'a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred'. (Lord Diplock in Secy. of State for Education and Science v. Tameside Metropolitan Borough Council 1977 AC 1014 at p.1064.) The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene." (emphasis supplied) The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness Two important aspects were also highlighted by learned Amicus Curiae; one relating to the desirability of indicating reasons in the order granting pardon/remission while the other was an equally more important question relating to power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration. According to learned Amicus Curiae, reasons are to be indicated, in the absence of which the exercise of judicial review will be affected.
So far as desirability to indicate guidelines is concerned in Ashok Kumar's case (supra) it was held as follows :
"17- In Kehar Singh's case (supra) on the question of laying down guidelines for the exercise of power under Article 72 of the constitution this Court observed in paragraph 16 as under: (SCC pp. 217-18, para 16) "It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that 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 assist by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme".
These observations do indicate that the Constitution Bench which decided Kehar Singh's case (supra) was of the view that the language of Article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may not be able to conceive of all myriads kinds and categories of cases which may come up for the exercise of such power. No doubt in Maru Ram's case (supra) the Constitution Bench did recommend the framing of guidelines for the exercise of power under Articles 72/161 of the Constitution. But that was a mere recommendation and not ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singh's case (supra). Therefore, the observation made by the Constitution Bench in Kehar Singh's case (supra) does not upturn any ratio laid down in Maru Ram's case(supra). Nor has the Bench in Kehar Singh"s case (supra) said any thing with regard to using the provisions of extant Remission Rules as guidelines for the exercise of the clemency powers."