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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL)  D.NO. 16039 OF 2011

Devender Pal Singh Bhullar       …Petitioner

versus

State of N.C.T. of Delhi                    ...Respondent

WITH

WRIT PETITION (CRIMINAL) No. 146 OF 2011

AND

WRIT PETITION (CRIMINAL) No. 86 OF 2011

J U D G M E N T

G. S. SINGHVI, J.

1. Human life is perhaps the most precious gift of the nature, which many  

describe as the Almighty.  This is the reason why it is argued that if you cannot  

give life,  you do not  have the right to  take  it.   Many believe that  capital  

punishment should not be imposed irrespective of the nature and magnitude of  

the  crime.   Others  think that  death penalty operates  as  a  strong deterrent  

against heinous crimes and there is nothing wrong in legislative prescription of

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

intense in the second part of the 20th century and those belonging to the first  

school  of  thought succeeded  in convincing the  governments  of  about  140  

countries to abolish death penalty.   

2. In India, death was prescribed as one of the punishments in the Indian  

Penal  Code,  1860  (IPC)  and  the  same  was  retained  after  independence.  

However, keeping in view the old adage that man should be merciful to all  

living creatures, the framers of the Constitution enacted Articles 72 and 161  

under which the President or the Governor, as  the case may be,  can grant  

pardons, reprieves, respites or remission of punishment or suspend, remit or  

commute the sentence of any person convicted of any offence and as will be  

seen hereinafter, the President has exercised power under Article 72 in large  

number of cases  for commutation of death sentence into life imprisonment  

except  when the accused was  found guilty of committing gruesome and/or  

socially abhorrent crime.  

3. The  campaign  for  the  abolition  of  capital  punishment  led  to  the  

introduction of a Bill in the Lok Sabha in 1956 but the same was rejected on  

23.11.1956.  After two years, a similar resolution was introduced in the Rajya  

Sabha  but,  after  considerable  debate,  the  same  was  withdrawn.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

attempt was made in this regard in 1961 but the resolution moved in the Rajya  

Sabha was rejected in 1962.  Notwithstanding these reversals, the votaries of  

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‘no capital punishment’ persisted with their demand.  The Law Commission of  

India examined the issue from various angles and recommended that death  

penalty should be retained in the statute book.  This is evinced from the 35th  

Report of the Law Commission, the relevant portions of which are extracted  

below:

“The  issue  of  abolition or  retention has  to  be  decided  on a  balancing of the various arguments for and against retention. No  single argument for abolition or retention can decide the issue. In  arriving at any conclusion on the subject, the need for protecting  society in general and individual human beings must be borne in  mind.

It is difficult to rule out the validity of, or the strength behind,  many of the arguments for abolition nor does, the commission  treat  lightly  the  argument  based  on  the  irrevocability  of  the  sentence of death, the need for a modern approach, the severity  of capital punishment and the strong feeling shown by certain  sections of public opinion in stressing deeper questions of human  values.

Having regard, however, to the conditions in India, to the variety  of the social upbringing of its inhabitants, to the disparity in the  level of morality and education in the country, to the vastness of  its area, to diversity of its population and to the paramount need  for  maintaining law  and  order  in  the  country  at  the  present  juncture, India cannot risk the experiment of abolition of capital  punishment.”

4. The  constitutionality  of  capital  punishment  was  examined  by  the  

Constitution Bench in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20.  The  

facts of that case were that appellant Jagmohan Singh was convicted for the  

murder of Chhote Singh and was sentenced to death by the trial Court.  The  

High Court confirmed the death sentence.  Before this Court, the counsel for  

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the appellant relied upon the judgment of the U.S. Supreme Court in Furman v.  

State  of  Georgia,  408  US 238  and argued that  death  penalty was  per  se  

unconstitutional.  This Court distinguished that judgment by observing that  

even though the sentence of death was set aside by a majority of 5:4, only two  

of the five Judges, namely, Mr. Justice Brennan and Mr. Justice Marshall were  

of the opinion that in view of Eighth Amendment to the American Constitution,  

which  forbade  ‘cruel  and  unusual  punishments’,  the  imposition  of  death  

penalty was  unwarranted and the opinion of  the  third Judge,  namely,  Mr.  

Justice  Douglas  could not  be  read  as  advocating total  abolition of  capital  

punishment.  The Constitution Bench then observed:

“So far as we are concerned in this country, we do not have, in  our constitution any provision like the Eighth Amendment nor  are we at  liberty to apply the test  of reasonableness with the  freedom  with  which  the  Judges  of  the  Supreme  Court  of  America  are  accustomed to  apply  “the  due  process”  clause.  Indeed  what  is  cruel  and  unusual  may,  in  conceivable  circumstances, be regarded as unreasonable. But when we are  dealing with punishments for crimes as prescribed by law we are  confronted with a serious problem. Not a few are found to hold  that life imprisonment, especially, as it is understood in USA is  cruel. On the other hand, capital punishment cannot be described  as unusual because that kind of punishment has been with us  from ancient times right up to the present day though the number  of  offences  for  which  it  can  be  imposed  has  continuously  dwindled.  The framers of our Constitution were well aware of  the existence of capital punishment as a permissible punishment  under the law. For example, Article 72(1)(  c  ) provides that the    President shall have power to grant pardons, reprieves, respites  or remissions of punishment or to suspend, remit or commute the  sentence of any person convicted of any offence “in all cases  where the sentence is a sentence of death”. Article 72(3) further  provides that “nothing in sub-clause (  c  ) of clause (1) shall affect    the power to suspend, remit or commute a  sentence of death  

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exercisable by the Governor of a State under any law for the  time being in force”. The obvious reference is to Sections 401  and 402 of the Criminal Procedure Code. Then again Entries 1  and 2 in List III of the Seventh Schedule refer to Criminal Law  and Criminal Procedure. In Entry No. 1 the entry Criminal Law  is  extended  by  specifically  including  therein  “all  matters  included in the Indian Penal Code at the commencement of this  Constitution”. All matters not only referred to offences but also  punishments—one of which is the death sentence. Article 134  gives a right of appeal to the Supreme Court where the High  Court reverses an order of acquittal and sentences a person to  death.  All  these  provisions  clearly  go  to  show  that  the  Constitution-makers  had  recognised  the  death  sentence  as  a  permissible punishment and had made constitutional provisions  for appeal, reprieve and the like. But more important than these  provisions in the Constitution is Article 21 which provides that  no  person  shall  be  deprived  of  his  life  except  according  to  procedure  established  by  law.  The  implication  is  very  clear.  Deprivation of life is constitutionally permissible if that is done  according to procedure established by law. In the face of these  indications of constitutional postulates it will be very difficult to  hold that capital sentence was regarded per se unreasonable or  not in the public interest.”

(emphasis supplied)

5. The constitutional validity of Section 302 IPC, which prescribes death  

as  one  of  the  punishments,  was  considered  by  the  Constitution  Bench in  

Bachan Singh v. State of Punjab (1980) 2 SCC 684.  By a majority of 4:1, the  

Constitution Bench declared that Section 302 IPC was constitutionally valid.  

Speaking for the majority, Sarkaria, J.  referred to the judgments of several  

countries, including India, opinions of Jurists and recorded his conclusion in  

the following words:

“To sum up, the question whether or not death penalty serves  any penological purpose is a difficult, complex and intractable  issue. It has evoked strong, divergent views. For the purpose of  testing  the  constitutionality  of  the  impugned  provision  as  to  

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death penalty in Section 302 of the Penal Code on the ground of  reasonableness  in  the  light  of  Articles  19  and  21  of  the  Constitution, it is not necessary for us to express any categorical  opinion,  one  way  or  the  other,  as  to  which  of  these  two  antithetical views, held by the Abolitionists and Retentionists, is  correct. It is sufficient to say that the very fact that persons of  reason, learning and light are rationally and deeply divided in  their  opinion  on  this  issue,  is  a  ground  among  others,  for  rejecting the petitioners argument that retention of death penalty  in  the  impugned  provision,  is  totally  devoid  of  reason  and  purpose. If, notwithstanding the view of the Abolitionists to the  contrary,  a  very  large  segment  of  people,  the  world  over,  including  sociologists,  legislators,  jurists,  judges  and  administrators still firmly believe in the worth and necessity of  capital  punishment  for  the  protection  of  society,  if  in  the  perspective  of  prevailing  crime  conditions  in  India,  contemporary public opinion channelized through the people's  representatives  in Parliament,  has  repeatedly in the last  three  decades, rejected all attempts, including the one made recently,  to abolish or specifically restrict the area of death penalty, if  death penalty is still a recognised legal sanction for murder or  some types of murder in most of the civilised countries in the  world, if the framers of the Indian Constitution were fully aware  — as we shall presently show they were — of the existence of  death penalty as punishment for murder, under the Indian Penal  Code,  if the 35th Report  and subsequent reports  of the Law  Commission  suggesting  retention  of  death  penalty,  and  recommending revision of the Criminal Procedure Code and the  insertion of the new Sections 235(2) and 354(3) in that Code  providing for pre-sentence hearing and sentencing procedure on  conviction for murder and other capital offences were before the  Parliament and presumably considered by it when in 1972-1973  it took up revision of the Code of 1898 and replaced it by the  Code of Criminal Procedure, 1973, it is not possible to hold that  the provision of death penalty as an alternative punishment for  murder, in Section 302 of the Penal Code is unreasonable and  not in the public interest. We would, therefore, conclude that the  impugned provision in Section 302, violates neither the letter nor  the ethos of Article 19.”

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While dealing with the argument that Section 302 violates Article 21 of the  

Constitution, Sarkaria, J. referred to the judgment in Maneka Gandhi v. Union  

of India (1978) 1 SCC 248 and observed:

“Thus expanded and read for interpretative purposes, Article 21  clearly  brings  out  the  implication,  that  the  founding  fathers  recognised the right of the State to deprive a person of his life or  personal  liberty  in  accordance  with  fair,  just  and  reasonable  procedure  established  by  valid  law.  There  are  several  other  indications,  also,  in  the  Constitution  which  show  that  the  Constitution-makers  were  fully cognizant  of  the  existence  of  death penalty for murder and certain other offences in the Indian  Penal Code. Entries 1 and 2 in List III — Concurrent List — of  the Seventh Schedule, specifically refer to the Indian Penal Code  and  the  Code  of  Criminal  Procedure  as  in  force  at  the  commencement of the Constitution. Article 72(1)(  c  ) specifically    invests the President with power to suspend, remit or commute  the sentence of any person convicted of any offence, and also  “in  all  cases  where  the  sentence  is  a  sentence  of  death”.  Likewise, under Article 161, the Governor of a State has been  given  power  to  suspend,  remit  or  commute,  inter  alia,  the  sentence of death of any person convicted of murder or other  capital offence relating to a matter to which the executive power  of the State extends. Article 134, in terms, gives a right of appeal  to the Supreme Court to a person who, on appeal, is sentenced  to death by the High Court, after reversal of his acquittal by the  trial  court.  Under  the  successive  Criminal  Procedure  Codes  which have been in force for about 100 years,  a  sentence of  death is to be carried out by hanging. In view of the aforesaid  constitutional postulates, by no stretch of imagination can it be  said that death penalty under Section 302 of the Penal Code,  either per se or because of its execution by hanging, constitutes  an unreasonable, cruel or unusual punishment. By reason of the  same constitutional postulates, it cannot be said that the framers  of the Constitution considered death sentence for murder or the  prescribed  traditional  mode  of  its  execution  as  a  degrading  punishment which would defile “the dignity of the individual”  within the contemplation of the preamble to the Constitution. On  parity of reasoning, it cannot be said that death penalty for the  offence  of  murder  violates  the  basic  structure  of  the  Constitution.”

(emphasis supplied)

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Sarkaria, J. then considered the question whether the Court should lay down  

standards or norms for sentencing and answered the same in the negative by  

giving the following reasons:    

“Firstly, there is little agreement among penologists and jurists  as to what information about the crime and criminal is relevant  and what is not relevant for fixing the dose of punishment for a  person convicted of a particular offence. According to Cessare  Beccaria, who is supposed to be the intellectual progenitor of  today's  fixed  sentencing  movement,  “crimes  are  only  to  be  measured by the injury done to society”. But the 20th Century  sociologists do not wholly agree with this view. In the opinion of  Von Hirsch, the “seriousness of a crime depends both on the  harm  done  (or  risked)  by  the  act  and  degree  of  actor's  culpability”.  But  how is  the  degree  of  that  culpability to  be  measured.  Can  any  thermometer  be  devised  to  measure  its  degree? This is a very baffling, difficult and intricate problem.

Secondly,  criminal  cases  do  not  fall  into  set  behavioristic  patterns. Even within a single-category offence there are infinite,  unpredictable  and unforeseeable  variations.  No two cases  are  exactly  identical.  There  are  countless  permutations  and  combinations which are beyond the anticipatory capacity of the  human calculus. Each case presents its own distinctive features,  its peculiar combinations of events and its unique configuration  of facts. “Simply in terms of blameworthiness or desert criminal  cases  are  different from one another in ways that legislatures  cannot anticipate, and limitations of language prevent the precise  description  of  differences  that  can  be  anticipated.”  This  is  particularly true  of  murder.  “There  is  probably  no  offence”,  observed  Sir  Ernest  Cowers,  Chairman  of  the  Royal  Commission,  “that  varies  so  widely both in character  and in  moral  guilt  as  that  which falls  within the  legal  definition of  murder”.  The  futility  of  attempting  to  lay  down  exhaustive  standards was demonstrated by this court in Jagmohan by citing  the instance of the Model Penal Code which was presented to  the American Supreme Court in McGoutha (1971) 402 US 183.

Thirdly, a standardisation of the sentencing process which leaves  little room for judicial discretion to take account of variations in  

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culpability within single-offence category ceases to be judicial. It  tends to sacrifice justice at the altar of blind uniformity. Indeed,  there  is  a  real  danger  of  such  mechanical  standardisation  degenerating into a bed of procrustean cruelty.

Fourthly,  standardisation  or  sentencing discretion  is  a  policy  matter  which  belongs  to  the  sphere  of  legislation.  When  Parliament  as  a  matter  of  sound  legislative  policy,  did  not  deliberately  restrict,  control  or  standardise  the  sentencing  discretion any further than that  is  encompassed  by the broad  contours delineated in Section 354(3), the court would not by  overleaping  its  bounds  rush  to  do  what  Parliament,  in  its  wisdom, warily did not do.”

The learned Judge also referred to the judgment in Jagmohan Singh’s case and  

observed:

“In Jagmohan, this Court had held that this sentencing discretion  is to be exercised judicially on well recognised principles, after  balancing all the aggravating and mitigating circumstances of the  crime.  By  “well  recognised  principles”  the  court  obviously  meant the principles crystallised by judicial decisions illustrating  as  to  what  were  regarded  as  aggravating  or  mitigating  circumstances  in  those  cases.  The  legislative  changes  since  Jagmohan — as we have discussed already — do not have the  effect  of  abrogating  or  nullifying those  principles.  The  only  effect is that the application of those principles is now to be  guided  by  the  paramount  beacons  of  legislative  policy  discernible from Sections 354(3) and 235(2), namely: (1) The  extreme penalty can be inflicted only in gravest cases of extreme  culpability; (2) In making choice of the sentence, in addition to  the circumstances, of the offence, due regard must be paid to the  circumstances of the offender, also.

xx xx xx xx xx     xx

Pre-planned, calculated, cold-blooded murder has always been  regarded as  one of an aggravated  kind.  In  Jagmohan,  it  was  reiterated  by  this  Court  that  if  a  murder  is  “diabolically  conceived and cruelly executed”, it would justify the imposition  of the death penalty on the murderer. The same principle was  

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substantially reiterated by V.R. Krishna Iyer, J., speaking for the  Bench in Ediga Anamma (1974) 4 SCC 443, in these terms:

“The weapons used and the manner of their use,  the horrendous features of the crime and hapless,  helpless state of the victim, and the like, steel the  heart of the law for a sterner sentence.””

The learned Judge then noted that in Rajendra Prasad v. State of U.P. (1979) 3  

SCC 646,  the majority judgment of the three-Judge Bench had completely  

reversed the view taken in Ediga Anamma v. State of A.P. (1974) 4 SCC 443  

and observed:

“It  may be  noted  that  this  indicator  for  imposing the  death  sentence was crystallised in that case after paying due regard to  the shift in legislative policy embodied in Section 354(3) of the  Code of Criminal Procedure, 1973, although on the date of that  decision (February 11, 1974), this provision had not come into  force. In Paras Ram case (SLP(Crl.) Nos. 698 and 678 of 1953,  decided on October, 1973) also, to which a reference has been  made earlier, it was emphatically stated that a person who in a fit  of  anti-social  piety commits “blood-curdling butchery”  of  his  child,  fully deserves  to  be  punished with death.  In  Rajendra  Prasad, however, the majority (of 2:l) has completely reversed  the view that had been taken in  Ediga Anamma regarding the  application of Section 354(3) on this point. According to it, after  the enactment of Section 354(3), “murder most foul” is not the  test. The shocking nature of the crime or the number of murders  committed is also not the criterion. It was said that the focus has  now completely shifted from the crime to the criminal. “Special  reasons” necessary for imposing death penalty “must relate not  to the crime as such but to the criminal”.

With great  respect,  we find ourselves unable to agree to this  enunciation. As we read Sections 354(3) and 235(2) and other  related provisions of the Code of 1973, it is quite clear to us that  for  making the  choice  of  punishment  or  for  ascertaining the  existence or absence of “special reasons” in that context,  the  court must pay due regard  both to the crime and the criminal.  What is the relative weight to be given to the aggravating and  

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mitigating factors, depends on the facts and circumstances of the  particular case. More often than not, these two aspects are so  intertwined that it is difficult to give a separate treatment to each  of them. This is so because “style is the man”. In many cases,  the  extremely cruel  or  beastly  manner  of  the  commission of  murder is itself a demonstrated index of the depraved character  of the perpetrator. That is why, it is not desirable to consider the  circumstances of the crime and the circumstances of the criminal  in two separate watertight compartments. In a sense, to kill is to  be cruel and therefore all murders are cruel. But such cruelty  may vary in its degree of culpability. And it is only when the  culpability  assumes  the  proportion  of  extreme  depravity  that  “special reasons” can legitimately be said to exist.

xxxx xxxx xxxx

In  Rajendra  Prasad,  the  majority  said:  “It  is  constitutionally  permissible to swing a criminal out of corporeal existence only if  the security of State and Society, public order and the interests  of the general public compel that course as provided in Article  19(2) to (6)”. Our objection is only to the word “only”. While it  may be conceded that a murder which directly threatens, or has  an extreme potentiality to harm or endanger the security of State  and Society, public order and the interests of the general public,  may provide “special reasons” to justify the imposition of the  extreme  penalty  on  the  person  convicted  of  such  a  heinous  murder,  it  is  not  possible  to  agree  that  imposition  of  death  penalty on murderers who do not fall within this narrow category  is constitutionally impermissible. We have discussed and held  above that the impugned provisions in Section 302 of the Penal  Code, being reasonable and in the general public interest, do not  offend Article  19,  or  its  “ethos”  nor  do  they in any manner  violate  Articles  21  and  14.  All  the  reasons  given by  us  for  upholding the validity of Section 302 of the Penal Code, fully  apply to the case of Section 354(3), Code of Criminal Procedure,  also. The same criticism applies to the view taken in Bishnu Deo  Shaw v.  State of W.B. (1979) 3 SCC 714 which follows the  dictum in Rajendra Prasad.”  

6. Although, in Bachan Singh’s case,  the Constitution Bench upheld the  

constitutional validity of Section 302 IPC, it did not enumerate the types of  

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cases in which death penalty should be awarded instead of life imprisonment.  

A three-Judge Bench considered this issue in Machhi Singh v. State of Punjab  

(1983) 3 SCC 470.  M.P. Thakkar, J.  wrote the judgment on behalf of the  

Bench with the following prelude:

“Protagonists  of  the “an eye  for an eye”  philosophy demand  “death-for-death”. The “Humanists” on the other hand press for  the  other  extreme  viz.  “death-in-no-case”.  A  synthesis  has  emerged in Bachan Singh v. State of Punjab wherein the “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  

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the community for this protection. When ingratitude is shown  instead of gratitude by “killing” a  member of the community  which protects the murderer himself from being killed, or when  the community feels that for the sake  of self-preservation the  killer has to be killed, the community may well withdraw the  protection by sanctioning the death penalty. But the community  will not do so in every case.  It  may do so “in rarest  of rare  cases” when its collective conscience is so shocked that it will  expect the holders of the judicial power centre to inflict death  penalty  irrespective  of  their  personal  opinion  as  regards  desirability  or  otherwise  of  retaining  death  penalty.  The  community may entertain such a sentiment when the crime is  viewed from the platform of the motive for, or the manner of  commission of the crime, or the anti-social or abhorrent nature of  the crime, such as for instance:

I. Manner of commission of murder  When  the  murder  is  committed  in  an  extremely  brutal,  

grotesque,  diabolical,  revolting or  dastardly  manner  so  as  to  arouse intense and extreme indignation of the community. For  instance,

(i) when the house of the victim is set aflame with the end in  view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or  cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body  is dismembered in a fiendish manner.

II. Motive for commission of murder  When the murder is committed for a motive which evinces  

total  depravity and meanness.  For instance  when (a)  a  hired  assassin commits murder for the sake of money or reward (b) a  cold-blooded murder is committed with a deliberate design in  order to inherit property or to gain control over property of a  ward or a person under the control of the murderer or vis-a-vis  whom the murderer is in a dominating position or in a position of  trust, or (c) a murder is committed in the course for betrayal of  the motherland.

III. Anti-social or socially abhorrent nature of the crime  

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(a)  When  murder  of  a  member  of  a  Scheduled  Caste  or  minority community etc., is committed not for personal reasons  but  in circumstances  which arouse  social wrath.  For instance  when  such  a  crime  is  committed  in  order  to  terrorize  such  persons and frighten them into fleeing from a place or in order to  deprive  them of,  or  make  them surrender,  lands  or  benefits  conferred on them with a view to reverse past injustices and in  order to restore the social balance.

(b)  In  cases  of  “bride  burning”  and  what  are  known  as  “dowry  deaths”  or  when  murder  is  committed  in  order  to  remarry for the sake of extracting dowry once again or to marry  another woman on account of infatuation.

IV. Magnitude of crime  When the crime is enormous in proportion. For instance when  

multiple murders say of all or almost all the members of a family  or a large number of persons of a particular caste, community, or  locality, are committed.

V. Personality of victim of murder  When the victim of murder is (a) an innocent child who could  

not  have  or  has  not  provided  even  an  excuse,  much less  a  provocation,  for  murder  (b)  a  helpless  woman  or  a  person  rendered helpless by old age or infirmity (c) when the victim is a  person  vis-a-vis  whom  the  murderer  is  in  a  position  of  domination  or  trust  (d)  when  the  victim is  a  public  figure  generally loved and respected by the community for the services  rendered by him and the murder is committed for political or  similar reasons other than personal reasons.”

The learned Judge then culled out the following propositions from the majority  

judgment in Bachan Singh’s case:

“(i) The extreme penalty of death need not be inflicted except  in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of  the ‘offender’ also require to be taken into consideration  along with the circumstances of the ‘crime’.

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(iii) Life imprisonment is  the rule and death sentence  is  an  exception. In other words death sentence must be imposed  only when life imprisonment appears to be an altogether  inadequate  punishment  having  regard  to  the  relevant  circumstances  of  the  crime,  and  provided,  and  only  provided, the option to impose sentence of imprisonment  for life cannot be conscientiously exercised having regard  to the nature and circumstances of the crime and all the  relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances  has  to  be  drawn  up  and  in  doing  so  the  mitigating  circumstances have to be accorded full weightage and a  just balance has to be struck between the aggravating and  the  mitigating  circumstances  before  the  option  is  exercised.”

7. The  discussion  on  the  subject  would  remain  incomplete  without  a  

reference to the concurring judgment of Fazal Ali, J, who was a member of the  

Constitution Bench in Maru Ram v. Union of India (1981) 1 SCC 107.  The  

main question considered in that case was whether Section 433A of the Code  

of  Criminal Procedure,  1973  (Cr.P.C.)  was  violative  of  Article  14  of  the  

Constitution and whether the provisions contained therein impinge upon the  

power vested in the President and the Governor under Articles 72 and 161 of  

the Constitution.   While expressing his agreement with the main judgment  

authored by Krishna Iyer, J. on the scope of Section 433A Cr.P.C., Fazal Ali,  

J. spelt out the following reasons for imposing deterrent sentences:

“(1)  to  protect  the community against  callous criminals for a  long time,

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(2)  to  administer  as  clearly as  possible  to  others  tempted  to  follow them into lawlessness on a war scale if they are brought  to and convicted, deterrent punishment will follow, and

(3)  to  deter  criminals  who  are  forced  to  undergo  long-term  imprisonment from repeating their criminal acts in future. Even  from the  point  of  view  of  reformative  form of  punishment  “prolonged and indefinite detention is justified not only in the  name of prevention but cure. The offender has been regarded in  one sense as a patient to be discharged only when he responds to  the treatment and can be regarded as safe” for the society.”

The learned Judge then referred to the judgment in Bachan Singh’s case and  

observed:

“  Taking into account the modern trends in penology there are    very rare cases where the courts impose a sentence of death and  even if in some cases where such sentences are given, by the  time the case reaches this Court, a bare minimum of the cases  are left where death sentences are upheld. Such cases are only  those  in  which  imposition  of  a  death  sentence  becomes  an  imperative necessity having regard to the nature and character of  the offences, the antecedents of the offender and other factors  referred to in the Constitution Bench judgment of this Court in  Bachan Singh   v.   State of Punjab  . In these circumstances, I am of  the opinion that the Parliament in its  wisdom chose to act  in  order to prevent criminals committing heinous crimes from being  released  through  easy  remissions  or  substituted  form  of  punishments without undergoing at least a minimum period of  imprisonment  of  fourteen  years  which  may in  fact  act  as  a  sufficient  deterrent  which  may  prevent  criminals  from  committing offences. In most parts of our country, particularly in  the  north,  cases  are  not  uncommon  where  even  a  person  sentenced to imprisonment for life and having come back after  earning  a  number  of  remissions  has  committed  repeated  offences.  The mere fact that a  long-term sentence or  for that  matter a sentence of death has not produced useful results cannot  support the argument either for abolition of death sentence or for  reducing the  sentence  of  life imprisonment from 14  years  to  something less. The question is not what has happened because  of  the  provisions  of  the  Penal  Code  but  what  would  have  happened if deterrent punishments were not given. In the present  distressed  and  disturbed atmosphere  we  feel  that  if  deterrent  

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punishment is not resorted to, there will be complete chaos in the  entire country and criminals will be let loose endangering the  lives of thousands of innocent people of our country. In spite of  all the resources at its hands, it will be difficult for the State to  protect  or  guarantee the life and liberty of all the citizens,  if  criminals  are  let  loose  and  deterrent  punishment  is  either  abolished  or  mitigated. Secondly,  while  reformation  of  the  criminal is  only one  side  of  the  picture,  rehabilitation of  the  victims and granting relief from the tortures and sufferings which  are caused to them as a result of the offences committed by the  criminals  is  a  factor  which  seems  to  have  been  completely  overlooked  while  defending  the  cause  of  the  criminals  for  abolishing deterrent sentences. Where one person commits three  murders it is illogical to plead for the criminal and to argue that  his life should be spared,  without at  all considering what has  happened to  the victims and their  family. A person who has  deprived another person completely of his liberty for ever and  has endangered the liberty of his family has no right to ask the  court to uphold his liberty. Liberty is not a one-sided concept,  nor  does  Article  21  of  the  Constitution  contemplate  such  a  concept. If a person commits a criminal offence and punishment  has been given to him by a procedure established by law which  is free and fair and where the accused has been fully heard, no  question of violation of Article 21 arises when the question of  punishment is being considered. Even so, the provisions of the  Code of Criminal Procedure of 1973 do provide an opportunity  to the offender, after his guilt is proved, to show circumstances  under which an appropriate sentence could be imposed on him.  These  guarantees  sufficiently  comply  with  the  provisions  of  Article  21.  Thus,  it  seems  to  me that  while  considering the  problem of  penology  we  should  not  overlook  the  plight  of  victimology and the sufferings of the people who die, suffer or  are maimed at the hands of criminals.”

(emphasis supplied)

8. Even after the judgments in Bachan Singh’s case and Machhi Singh’s  

case, Jurists and human rights activists have persisted with their demand for  

the abolition of death penalty and several attempts have been made to persuade  

the Central Government to take concrete steps in this regard.  It is a different  

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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  

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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.”

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THE FACTS:

9. We shall now advert  to  the facts  necessary for disposing the above  

noted writ petitions, one of which was jointly filed by Shri Devender Pal Singh  

Bhullar (hereinafter referred to as ‘the petitioner’), who was convicted by the  

designated Court, Delhi for various offences under TADA and IPC and Delhi  

Sikh Gurdwara Management Committee.  Later on, the Court accepted the oral  

request  made by learned senior counsel for the petitioners and deleted the  

name of petitioner No.2 from the array of parties.  The other writ petition has  

been filed by the wife of the petitioner and the third has been filed by Justice  

on Trial Trust, a non-Government organization registered under the Bombay  

Public Trusts Act, 1950.

9.1 After obtaining the degree of Bachelor of Engineering from Guru Nanak  

Engineering College, Ludhiana in 1990, the petitioner joined as a teacher in the  

same college.  He was suspected to be involved in the terrorist activities in  

Punjab and it is said that he was responsible for an attempt made on the life of  

Shri Sumedh Singh Saini, the then Senior Superintendent of Police, Chandigarh  

on 29.8.1991.  Shri Saini’s car was blasted by remote control resulting in the  

death of some of his security guards.  The petitioner was also suspected to be  

responsible for an attack on the car cavalcade of the then President of Youth  

Congress Maninderjit Singh Bitta, in Delhi on 10.9.1993. As a result of the  

blast caused by using 40 kgs. RDX, 9 persons were killed and 17 were injured.  

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Apprehending his arrest and possible elimination by the police as is alleged to  

have been done in the case  of his father,  uncle and friend Balwant Singh  

Multani, the petitioner decided to go to Canada.  However, on the basis of  

information supplied by the Indian authorities, he was taken into custody at  

Frankfurt Airport and deported to India.  He was charged with offences under  

Sections 419, 420, 468 and 471 IPC, Section 12 of the Passports Act, 1967  

and Sections 2, 3 and 4 TADA.  The designated Court, Delhi found him guilty  

and sentenced him to death.  The appeal filed by him was dismissed by this  

Court vide judgment titled Devender Pal Singh v. State (NCT of Delhi), (2002)  

5 SCC 234.  The review petition filed by the petitioner was also dismissed by  

this Court vide order dated 17.12.2002.   

9.2 Soon after  dismissal  of  the  review petition,  the  petitioner  submitted  

petition dated 14.1.2003 to the President under Article 72 of the Constitution  

and  prayed  for  commutation  of  his  sentence.   Delhi  Sikh  Gurdwara  

Management Committee sent letters dated 28.1.2003 to the then President, Dr.  

A.P.J. Abdul Kalam; the then Prime Minister, Shri Atal Bihari Bajpai and the  

former Prime Minister, Shri H.D. Deve Gowda asking for a meeting with them  

in  connection  with  commutation  of  the  death  sentence  awarded  to  the  

petitioner.  After three years, Delhi Sikh Gurdwara Management Committee  

submitted representations dated 6.4.2006 and 29.9.2006 to Dr. A.P.J. Abdul  

Kalam and  the  Prime  Minister  Dr.  Manmohan  Singh and  reiterated  their  

demand for a  meeting.  In the letter  sent  to  Dr.  Manmohan Singh, it  was  

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mentioned that the Governments of Germany and Canada had made strong  

representation for clemency.  It was also pointed out that Germany has already  

abolished death penalty and in terms of Section 34C of the Extradition Act,  

1962,  death  penalty  cannot  be  imposed  if  the  laws  of  the  State  which  

surrenders  or  returns  the  accused  do  not  provide  for  imposition  of  death  

penalty for such crime.  The Committee also made a mention of large number  

of representations made by the Sikh community, particularly those settled in  

Canada, for grant of clemency to the petitioner.   

9.3 During the pendency of the petition filed under Article 72, the petitioner  

filed Curative Petition (Crl.) No. 5 of 2003, which was dismissed by this Court  

on 12.3.2003.   

9.4 The files produced by the learned Additional Solicitor General show that  

even before the petition filed by the petitioner could be  processed  by the  

Ministry of Home Affairs,  Government of India, the President’s Secretariat  

forwarded  letter  dated  25.12.2002  sent  by  Justice  A.S.  Bains  (Retd.),  

Chairman,  Punjab  Human Rights  Organization  and  others  in  the  name of  

‘Movement Against State Repression, Chandigarh’, for commutation of death  

sentence  awarded  to  the petitioner on the ground that  in the case  of Abu  

Salem, the Government of India had given an assurance to the Government of  

Portugal that on his deportation, Abu Salem will not be awarded death penalty.  

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9.5 In April 2003, the President’s Secretariat forwarded to the Ministry of  

Home  Affairs,  the  petitions  received  from the  following  personalities  for  

showing clemency to the petitioner:  

(1) Mr. David Kilgour, Secretary of State (Asia Pacific);  

(2) Department of Foreign Affairs and International Trade, Canada;  

(3) Congress of the United States, Washington;  

(4) Mr. Tony Baldry, MP, House of Commons, London;  

(5) Shri Ram Jethmalani, M.P. (Rajya Sabha);  

(6)  Shri  Justice  A.S.  Bains,  former  Judge  and  Convenor,  Devinderpal  Singh Bhullar Defence Committee; and  

(7) Shri Simranjit Singh Mann, M.P . (Lok Sabha).   

9.6 On 3.6.2003, the Ministry of External Affairs forwarded two communications received by it   from the Greek Ambassador, in his capacity as President of the European Union Ambassador in  

New Delhi, who conveyed the European Union’s strong conviction against the death sentence and  

pleaded for clemency in favour of the petitioner.  Similar communications were sent by Mr. Jean  

Lamberti,  Member European Parliament,  Brussels, and various Sikh forums/organizations from  

Punjab and U.K.   

9.7 After the matter was processed at different levels of the Government, in the backdrop of  internal and external pressures, the case was finally submitted to the President on 11.7.2005 with  

the recommendation that the mercy petition of the petitioner be rejected.   It is not borne out from   

the record as to what happened for the next five years and nine months, but this much is evident  

that no decision was taken by the President.

9.8 On 29.4.2011, the Ministry of Home Affairs sent a request to the President’s Secretariat to  return  the  file  of  the  petitioner.   On  6.5.2011,  the  file  was withdrawn  from  the  President’s  

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Secretariat for reviewing the petitioner’s case.  The matter was again examined in the Ministry of   

Home Affairs and on 10.5.2011, the then Home Minister opined that those convicted in the cases  

of  terrorism do not deserve any mercy or compassion and accordingly  recommended that the  

sentence of death be confirmed.  The President accepted the advice of the Home Minister and  

rejected the mercy petition.  The petitioner was informed about this vide letter dated 13.6.2011   

sent by Deputy Secretary (Home) to the Jail  Authorities.   The relevant portion of  the decision   

taken by the President, which was incorporated  in letter dated 30.5.2011 sent by Joint  

Secretary (Judicial), Ministry of Home Affairs,  Government of India to the  

Principal Secretary, Home Department, Government of NCT of Delhi, reads as  

under:

“The President of India has, in exercise of  the  powers  under  Article  72  of  the  Constitution  of  India,  been  pleased  to  reject the  mercy  petition  submitted  by  the  condemned prisoner  Devender  Pal  Singh and  petitions  on  his  behalf  from  others.  The  prisoner may be informed of the orders of the  President act accordingly.”

9.9 After rejection of his petition by the President,  the petitioner sought leave of the  

Court  and was  allowed to  amend the writ  petition and make a  prayer  for  

quashing communication dated 13.6.2011.

9.10  While issuing notice of Writ Petition (Criminal) D. No.16039 of 2011  

(unamended), this Court directed the respondent to clarify why the petitions  

made by the petitioner had not been disposed of for more than 8 years.  In  

compliance of the Court’s directive, Shri B.M. Jain, Deputy Secretary (Home)  

filed short affidavit dated 19/21.7.2011.  Subsequently, Shri J. L. Chugh, Joint  

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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

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8. With reference to the above  figure, it is submitted that  there  were  28  Mercy  petitions  of  death  convicts  pending  under  Article  72  of  the  Constitution  in  October 2009. Two cases were received in November 2009 and two  new Mercy Petition  cases  have  been  received  in  2011 (till  30th September,  2011).  This  makes  the  total  number  of  Mercy  Petitions  32  as  on  30.09.2011.  After  the  new  Government was  formed in May  2009, in September 2009 it  was  decided  to  recall  the  cases pending with  the  President's  Secretariat for review in the Ministry of Home Affairs, to  assist in expediting a decision by the President of India in each case.   The cases were recalled  from President's Secretariat  one-by-one,  on the basis  of  the date of  trial  court  judgment  and  were  resubmitted  to  the  President's  Secretariat  after  review.  Recalling of the cases was not under a Constitutional provision but an  administrative  decision  to  ensure  a  fair  and  equal  treatment  of  all   cases  and  to  assist  in  expediting  a  decision  by  the  Hon'ble  President.  Till  30.09.2011,  25  Mercy  Petition  were  resubmitted/submitted  to  the  President's  Secretariat.  The  Hon'ble  President  decided  one  Mercy  Petition  in  November  2009,  four  Mercy Petitions in 2010 and eight Mercy Petitions in 2011  (till  30th September,  2011).  Therefore,  a  total  of  13  Mercy Petitions  have  been  decided  by  the  President  since  November  2009.  Presently, 19 Mercy Petitions are pending under  Article 72 of  the  Constitution;  out  of  which  14  are  pending  with  President's  Secretariat  and  five  are  pending  with  Ministry  of  Home  Affairs  (including the two new mercy petitions which have been received  in 2011).”

ARGUMENTS:

10. Shri K.T.S. Tulsi, learned senior counsel for the petitioner relied upon the judgments in  

T.V. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC 68, K.P. Mohd. v.  

State of Kerala 1984 Supp. SCC 684 and  Javed Ahmed v. State of  Maharashtra  

(1985) 1 SCC 275 and argued that 8 years’ delay in the disposal of mercy petition  

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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  

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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   

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Constitution due to executive indifference or callousness or other extraneous reasons should  

always be treated as sufficient for commutation of death sentence into life imprisonment.  

12. Shri  Andhyarujina,  learned  senior  counsel,  who  also  assisted  the  Court  as  an  

Amicus commenced his submissions by pointing out that the power reposed in the President  

under Article 72 and the Governor under Article 161 of the Constitution is not a matter of   

grace or mercy, but is a constitutional duty of great significance and the same has to be   

exercised with great care and circumspection keeping in view the larger public interest. He  

referred to the judgment of the U.S. Supreme Court in Biddle v. Perovoch 274 US 480 as  

also the judgments of this Court in Kehar Singh’s case and Epuru Sudhakar v. Government   

of  A.P.  (2006)  8  SCC 161  and  submitted  that  the  power  to  grant  pardon  etc.  is  to  be  

exercised by the President not only for the benefit of the convict, but also for the welfare of  

the people.  Learned senior counsel submitted that inordinate delay in disposal of a petition  

filed under Article 72 or 161 is cruel, inhuman and degrading.  He relied upon a passage  

from  the  book  titled  “The  Death  Penalty”  A  Worldwide  Perspective  by  Roger  Hood  &  

Carolyne Hoyle 4th Ed. Pages 175-186 and submitted that keeping a convict in suspense for  

years  together  is  totally  unjustified  because  it  creates  adverse  physical  conditions  and  

psychological stress on the convict under sentence of death.  Shri Andhyarujina relied on  

Riley v. Attorney General of Jamaica (1983) 1 AC 719, Pratt v. Attorney General of Jamaica  

(1994) 2 AC 1 and argued that except in cases involving delay by or on behalf of the convict,  

the Court should always lean in favour of commutation of death sentence.  Learned senior   

counsel lamented that in a large number of cases, the President did not decide the petitions   

filed under Article 72 and, therefore, the Court should consider the desirability of ordering  

commutation of death sentence in all such cases.

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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  

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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  

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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?

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(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  

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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  

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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  

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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  

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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)

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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.”

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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.”

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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  

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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  

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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  

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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.

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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  

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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  

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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  

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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  

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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?”

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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,  

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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.

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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:   

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“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  

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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  

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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)

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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  

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reopen  the  conclusions  reached  by  the  court  while  finally  maintaining the sentence of death.  This Court,  however,  may  consider  the  question  of  inordinate  delay  in  the  light  of  all  circumstances of the case  to decide whether the execution of  sentence  should  be  carried  out  or  should  be  altered  into  imprisonment for life. No fixed period of delay could be held to  make the sentence of death inexecutable and to this extent the  decision in Vatheeswaran case cannot be said to lay down the  correct law and therefore to that extent stands overruled.”

(This order is reported in (1988) 4 SCC 574)

32. In paragraph 13 of the main judgment G.L. Oza, J., noted the argument  

made on behalf of the petitioners that delay causes immense mental torture to a  

condemned prisoner and observed:

“.............It is no doubt true that sometimes in these procedures  some time is taken and sometimes even long time is spent. May  be  for  unavoidable  circumstances  and sometimes even at  the  instance of the accused but it was contended and rightly so that  all this delay up to the final judicial process  is taken care of  while the judgment is finally pronounced and it could not be  doubted that in number of cases considering (sic) the time that  has elapsed from the date of the offence till the final decision has  weighed with the courts and lesser sentence awarded only on  this account.”

The learned Judge then observed that while considering the question of delay  

after the final verdict is pronounced, the time spent on petitions for review and  

repeated mercy petitions at the instance of the convicted person himself shall  

not  be  considered  and  the  only  delay  which  would  be  material  for  

consideration will be the delay in disposal  of the mercy petitions or  delay  

occurring at the instance of the executive.  

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33. While rejecting the argument that keeping a condemned prisoner in jail  

amounts to double jeopardy, Oza, J., referred to Section 366 Cr.P.C. and held  

that when a person is committed to jail awaiting the execution of the sentence  

of death, it is not an imprisonment but the prisoner has to be kept secured till  

the  sentence  awarded  by  the  Court  is  executed.  The  learned  Judge  also  

rejected the argument that delay in execution of the sentence entitles a prisoner  

to  approach this Court  because  his right under Article 21 is infringed and  

observed:

“………..the  only  jurisdiction  which  could  be  sought  to  be  exercised by a prisoner for infringement of his rights can be to  challenge the subsequent events after the final judicial verdict is  pronounced and it is because of this that on the ground of long or  inordinate  delay  a  condemned  prisoner  could  approach  this  Court and that is what has consistently been held by this Court.  But it will not be open to this Court in exercise of jurisdiction  under Article 32 to go behind or to examine the final verdict  reached  by  a  competent  court  convicting and  sentencing the  condemned  prisoner  and  even  while  considering  the  circumstances in order to reach a conclusion as to whether the  inordinate delay coupled with subsequent circumstances could  be held to be sufficient for coming to a conclusion that execution  of the sentence of death will not be just and proper. The nature  of  the  offence,  circumstances  in  which  the  offence  was  committed will have to be taken as found by the competent court  while finally passing the verdict. It may also be open to the court  to examine or consider any circumstances after the final verdict  was pronounced if it is considered relevant………….”

34. K. Jagannatha Shetty, J., who delivered a concurring opinion referred to  

the jurisprudential development in other countries on the issue of execution of  

the sentence of death and observed:

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“Under Article 72 of the Constitution, the President shall have  the power to “grant pardons, reprieves, respites or remissions of  punishment or to suspend, remit or commute the sentence of any  person  convicted  of  any offence”.  Under  Article  161  of  the  Constitution, similar is the power of the Governor to give relief  to any person convicted of any offence against any law relating  to a matter to which the executive power of the State extends.  The time taken by the executive for disposal of mercy petitions  may depend upon the nature of the case and the scope of enquiry  to  be  made.  It  may also  depend upon the  number of  mercy  petitions submitted by or on behalf of the accused. The court,  therefore, cannot prescribe a time-limit for disposal of even for  mercy petitions.

It is, however, necessary to point out that Article 21 is relevant  at all stages. This Court has emphasised that “the speedy trial in  criminal cases though not a specific fundamental right, is implicit  in the broad sweep and content of Article 21”. Speedy trial is a  part of one's fundamental right to life and liberty. This principle,  in  my  opinion,  is  no  less  important  for  disposal  of  mercy  petition. It  has been universally recognised that a  condemned  person has to suffer a degree of mental torture even though there  is no physical mistreatment and no primitive torture. He may be  provided with amenities  of  ordinary inmates  in the  prison as  stated in Sunil Batra v. Delhi Admn., but nobody could succeed  in giving him peace of mind.

Chita Chinta Dwayoormadhya, Chinta Tatra Gariyasi, Chita Dahati Nirjivam, Chinta Dahati Sajeevakam.

As between funeral fire and mental worry, it is the latter which is  more devastating,  for,  funeral  fire  burns  only the  dead  body  while the mental worry burns the living one. This mental torment  may become acute when the judicial verdict is finally set against  the accused. Earlier to it, there is every reason for him to hope  for acquittal. That hope is extinguished after the final verdict. If,  therefore, there is inordinate delay in execution, the condemned  prisoner is entitled to come to the court requesting to examine  whether it is just and fair to allow the sentence of death to be  executed.

....................................................... The court while examining  the  matter,  for  the  reasons  already  stated,  cannot  take  into  

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account the time utilised in the judicial proceedings up to the  final verdict. The court also cannot take into consideration the  time taken for disposal of any petition filed by or on behalf of  the accused either under Article 226 or under Article 32 of the  Constitution after the final judgment affirming the conviction and  sentence. The court may only consider whether there was undue  long delay in disposing of mercy petition ; whether the State was  guilty of  dilatory conduct  and whether  the  delay was  for  no  reason at all.  The inordinate delay, may be a significant factor,  but that by itself cannot render the execution unconstitutional.  Nor  it  can  be  divorced  from  the  dastardly  and  diabolical  circumstances of the crime itself.........”

(emphasis supplied)

35. In Madhu Mehta v. Union of India (supra),  this Court commuted the  

death sentence  awarded to  one Gyasi Ram, who had killed a  Government  

servant, namely,  Bhagwan Singh (Amin), who had attached his property for  

recovery of arrears of land revenue.  After disposal of the criminal appeal by  

this Court, the wife of the convict filed a mercy petition in 1981.  The same  

remained pending for 8 years.  This Court considered the writ petition filed by  

the petitioner Madhu Mehta,  who was the national convener of Hindustani  

Andolan, referred to the judgments in T.V. Vatheeswaran’s case, Sher Singh’s  

case  and  Triveniben’s  case  and  held  that  in  the  absence  of  sufficient  

explanation 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  

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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.  

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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  

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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  

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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  

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Sudhakar v. Government of A.P. (2006) 8 SCC 161 and Narayan Dutt v. State of Punjab   

(2011) 4 SCC 353.

42. So far as  the petitioner is concerned,  he was convicted for killing 9  

innocent persons and injuring 17 others. The designated Court found that the  

petitioner and other members of Khalistan Liberation Front, namely, Kuldeep,  

Sukhdev Singh, Harnek and Daya  Singh Lahoria were  responsible  for  the  

blast.   Their  aim was  to  assassinate  Shri M.S.  Bitta,  who was  lucky and  

escaped with minor injuries.  While upholding the judgment of the designated  

Court, the majority of this Court referred to the judgments in Bachan Singh’s  

case and observed:

“From  Bachan Singh v.  State of Punjab and  Machhi Singh v.  State  of  Punjab the  principle  culled  out  is  that  when  the  collective conscience of the community is so shocked, that it will  expect the holders of the judicial power centre to inflict death  penalty  irrespective  of  their  personal  opinion  as  regards  desirability or otherwise of retaining death penalty, the same can  be awarded. It was observed:

The community may entertain such sentiment in the following  circumstances:

(1)  When  the  murder  is  committed  in  an  extremely  brutal,  grotesque,  diabolical,  revolting,  or  dastardly manner so  as  to  arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces  total depravity and meanness; e.g. murder by hired assassin for  money or reward; or cold-blooded murder for gains of a person  vis-à-vis whom the murderer is in a dominating position or in a  position  of  trust;  or  murder  is  committed  in  the  course  for  betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority  community etc.  is  committed not  for  personal  reasons  but  in  

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circumstances which arouse social wrath; or in cases of ‘bride  burning’  or  ‘dowry deaths’  or  when murder  is  committed  in  order to remarry for the sake of extracting dowry once again or  to marry another woman on account of infatuation.

(4)  When the  crime is  enormous in  proportion.  For  instance  when multiple murders, say of all or almost all the members of a  family  or  a  large  number  of  persons  of  a  particular  caste,  community, or locality, are committed.

(5) When the victim of murder is an innocent child, or a helpless  woman or old or infirm person or a person vis-à-vis whom the  murderer is in a dominating position, or a public figure generally  loved and respected by the community.

If upon taking an overall global view of all the circumstances in  the light of the aforesaid propositions and taking into account the  answers to the questions posed by way of the test for the rarest  of rare cases, the circumstances of the case are such that death  sentence is warranted, the court would proceed to do so.”

43. The finding recorded by the majority on the issue of the petitioner’s guilt  

is conclusive and, as held in Triveniben’s case and other cases, while deciding  

the issue whether the sentence of death awarded to the accused should be  

converted into life imprisonment, the Court cannot review such finding.

44. It is true that there was considerable delay in disposal of the petition  

filed by the petitioner but, keeping in view the peculiar facts of the case, we  

are  convinced  that  there  is  no  valid  ground to  interfere  with the  ultimate  

decision taken by the President not to commute the sentence of death awarded  

to the petitioner into life imprisonment.  We can take judicial notice of the fact  

that  a  substantial  portion  of  the  delay  can  well-nigh be  attributed  to  the  

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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  

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Home  Affairs  also  failed  to  take  appropriate  steps  for  reminding  the  

President’s Secretariat about the dire necessity of the disposal of the pending  

petitions.  What was done in April and May, 2011 could have been done in  

2005 itself and that would have avoided unnecessary controversy.  Be that as it  

may, we are of the considered view that delay in disposal of the petition filed  

by the petitioner under Article 72 does not justify review of the decision taken  

by the President in May 2011 not to entertain his plea for clemency.

46. Though  the  documents  produced  by  Shri  K.T.S.  Tulsi  do  give  an  

indication that on account of prolonged detention in jail after his conviction  

and sentence to death, the petitioner has suffered physically and mentally, the  

same cannot be relied upon for recording a finding that the petitioner’s mental  

health has deteriorated to such an extent that the sentence awarded to him  

cannot be executed.

47. Before  parting with the  judgment,  we  consider  it  necessary  to  take  

cognizance of a rather disturbing phenomena.  The statistics produced by the  

learned Additional Solicitor General show that between 1950 and 2009, over  

300 mercy petitions were filed of which 214 were accepted by the President  

and the sentence of death was commuted into life imprisonment.  69 petitions  

were  rejected  by  the  President.   The  result  of  one  petition  is  obscure.  

However, about 18 petitions filed between 1999 and 2011 remained pending  

for a period ranging from 1 year to 13 years.  A chart showing the details of  

such petitions is annexed with the Judgment as Schedule ‘A’.  The particulars  

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contained in Schedule ‘A’ give an impression that the Government and the  

President’s  Secretariat  have  not  dealt  with  these  petitions  with  requisite  

seriousness.  We hope and trust that in future such petitions will be disposed of  

without unreasonable delay.

48. For the reasons stated above, we hold that the petitioners have failed to  

make out a case for invalidation of the exercise of power by the President  

under Article 72 of the Constitution not to accept the prayer for commutation  

of  the  sentence  of  death  into  life  imprisonment.   The  writ  petitions  are  

accordingly dismissed.

...............................................................................J .

(G.S. SINGHVI)

................................................................................ J.

(SUDHANSU JYOTI MUKHOPADHAYA) New Delhi; April 12, 2013

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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 18.03.1999 1999 Pending

13 years

2. Sheikh Meeran,  Selvam and  Radhakrishnan

21.06.1999 05.07.1999 (Review)

2000 Pending

12 years

3. Suresh and Ramji 03.02.2001 2002 Pending 10 years 4. Om Prakash 04.03.2003 2003 Pending 9 years

5. Lalila Doom and Shivlal 20.02.2004 2004 Pending 8 years

6. Praveen Kumar 25.10.2003 2004 Pending 8 years

7. Madaiah and Bilavandra 29.01.2004 2004 Pending 8 years

8. Karan Singh and  Kunwar Bahadur  Singh

19.07.2005 2005 Pending

7 years

9. Jafar Ali 04.05.2004 2006 Pending 6 years

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S.No. Name of convicts

Date of  Supreme

Court  Judgment

Date Mercy Petition  received by MHA

Date Mercy  Petition  

decided by the  President

Rejected /  Commuted /  

Pendency Period of  Pendency

10. Mohd. Afzal Guru 08.04.2005 2006 Pending 6 years

11. Bandu Baburao Tidake 07.10.2006 2007 Pending 5 years

12. Gurmeet Singh 28.09.2005 2007 Pending 5 years

13. Saibanna Ningappa Natikar 21.04.2005 2007 Pending 5 years

14. Satish 02.08.2005 2007 Pending 5 years 15. Sonia and Sanjeev 2007 Pending 5 years 16. Bantu 23.07.2008 2009 Pending 3 years 17. Prajeet Kumar 2011 Pending 1 year 18. Sunder Singh 2011 Pending 1 year

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