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Judgment
The petitioner is a condemned prisoner, as he was punished under charges framed against him u/s 302 of the Indian Penal Code. Though the
Sessions Court, Erode held that the prosecution had failed to prove that the petitioner had committed the offence, the High Court, .n appeal,
reversed the said judgment and awarded capital punishment of death to the petitioner. Even further appeal to the Supreme Court, ended in
dismissal. Thereafter, the petitioner made an application to The President of India invoking His mercy under Article 72 of the Constitution of India,
to remit the sentence imposed on him. The same has been rejected by The President of India, which has been informed to the petitioner, under the
impugned order, which is now under challenge in this Writ Petition. People''s Union for Civil Liberties, Tamil Nadu and Pondicherry, and the
President Co-ordinator, Campaign against death penalty have filed petitions to implead them as parties-respondents in the Writ Petition so as to
enable them to assist the Court to decide the issue and they have been imp leaded as respondents 7 and 8. The State Government and the
Government of India have filed their respective counter affidavits explaining the reasons for the delay.
The learned counsel appearing for the petitioner has given up the respondents 1 and 2.
Before dealing with the respective submissions of the learned counsel appearing for the petitioner and the respondents, it is beneficial to extract
the facts leading to the filing of this Writ Petition so as to appreciate the case of the petitioner. One Nagamalai Gounder who is the paternal uncle
of the petitioner was living with his wife Ponnuthai Ammal alias RamathaI, his sons (Balasubramaniam and Moorthy alias Ramakrishnan), and his
daughter (Selvi alias Anbu Selvi) in a thatched house in the outskirts of KondayampaIayam village. There was a dispute between the said
Nagamalai Gounder and the petitioner''s father with respect to the land bearing Survey No.26. It was the case of the prosecution that on
29/30.5.1984 between 11.00 and 11.30 p.m. the petitioner murdered all the abovesaid persons. So a charge sheet was filed against the petitioner
u/s 302 of I.P.C. (5 in numbers) by the State Crime Branch, Coimbatore Investigation Agency, in Cr.No.133 of 1984. The learned Sessions
Judge, Coimbatore in S.C.No.104 of 1985, after examining the witnesses, held that the charges framed u/s 302 of I.P.C. against the petitioner had
not been proved beyond doubt, and therefore the petitioner was acquitted. The State filed Appeal in Crl. Appeal No.30 of 1988 before this
Court. The Division Bench of this Court in the judgment dated 2.9.1997 reversed the judgment of the learned Sessions Judge and awarded capital
punishment of death against the petitioner. To come to such conclusion, the Division Bench has found as to follows:-
(58) Now, we are going to consider the law laid down by the Apex Court of our land in the above rulings with reference to the present case on
hand. Admittedly, as seen from the facts and circumstances of the case, the following are proved beyond doubt:
(1) There is no provocation or any quarrel between the accused and the five deceased. All the five deceased were unarmed and sleeping during
midnight and also they were helpless. There was no scope or chance for them to face the attack.
(2) It is proved beyond doubt that it was a pre-meditated one, but not on account of any sudden provocation.
(3) There is no mental derangement for the accused to kill 5 human beings in five strokes one after another and they were killed during the course
of their sleep.
(4) The nature and the manner in which the accused committed the five murders found to be gruesome,calculated, heinous, atrocious and cold-
blooded murder.
Accordingly, in the above circumstances, it is proved beyond doubt that the said heinous and calculated offence committed by the
respondent/accused in killing the 5 persons with five strokes one after the another is a rarest of the rare cases of the present age in this State as a
whole.
(59) We are of the clear view that the way in which he cut the neck of five individuals, while they were sleeping during midnight, is really a pre-
medidated, atrocious and calculated murder. As such we are of the clear opinion that if a human being of this nature viz., the respondent/accused is
allowed to continue to live in the present society, there is great threat to the co-human beings. There is no safety or protection for the innocent,
helpless, unarmed fellow human beings in the society. In view of the above special reason and the peculiar circumstances of the case on hand, we
are of the clear view that it is just, proper, appropriate, fit and deserving case where the capital punishment of death could be awarded to the
respondent/accused"".
The petitioner filed appeal before the Apex Court in Crl. Appeal No.900 of 1997. In the judgment dated 22.4.1998, reported in Govindasami
Vs. State of Tamil Nadu, , the Apex Court confirmed the punishment awarded by the High Court. While dealing with the submission of the learned
counsel for the appellant therein regarding the imposition of extreme penalty of death, the Apex Court has held as follows :-
From the impugned judgment we find that the High Court first discussed the principles laid down by this Court, for imposing death sentence in
Bachan Singh Vs. State of Punjab, and other cases, and then stated as under:
Now, we are going to consider the law laid down by the Apex Court of our land in the above rulings with reference to the present case on hand.
Admittedly, as seen from the facts and circumstances of the case, the following are proved beyond doubt:
(1) There is no provocation or any quarrel between the accused and the five deceased. All the five deceased were unarmed and sleeping during
midnight and also they were helpless. There was no scope or chance for them to face the attack.
(2) It is proved beyond doubt that it was a pre-meditated one, but not on account of any sudden provocation.
(3) There is no mental derangement for the accused to kill 5 human beings in five strokes one after another and they were killed during the course
of their sleep.
(4) The nature and the manner in which the accused committed the five murders was found to be gruesome, calculated, heinous, atrocious and
cold-blooded murder.
Accordingly, in the above circumstances, it is proved beyond doubt that the said heinous and calculated offence committed by the
respondent/accused in killing the 5 persons with five strokes one after the other is a rarest of the rare case of the present age in this state as a
whole.
We are of the clear view that the way in which he cut the neck of five individuals, while they were sleeping during midnight, is really a pre-
meditated, atrocious and calculated murder. As such we are of the clear opinion that if a human being of this nature, viz., the respondent/accused is
allowed to continue -to live in the present society, there is great threat to the co-human beings. There is no safety or protection for the innocent,
helpless, unarmed fellow human beings in the society. In view of the above special reason and the peculiar circumstances of the case on hand, we
are of the clear view that it is just, proper, appropriate, fit and deserving case where the capital punishment of death could be awarded to the
respondent/accused''.
(20) From the above quoted observations, it is seen that the High Court did not base its decision to impose the penalty of death solely on the fact
that 5 persons were murdered but also other attending circumstances relating to the murders. Having given our anxious and deep consideration to
this aspect of the matter we are in complete agreement with the reasons canvassed by the High Court to impose the capital punishment. We only
wish to add that the brutal manner in which the appellant wiped out the entire family of his uncle (except one of his sons, (P.W-8) who, fortunately
at the material time was studying in Coimbatore), obviously to grab his properties, has shocked our judicial conscience. Nonetheless we looked
into the record to find out whether there was any extenuating or mitigating circumstances in favour of the appellant but found none. If, in spite
thereof, we commute the death sentence to life imprisonment we will be yielding to spasmodic sentiment, unregulated benevolence and misplaced
sympathy.
(21) In Mahesh and Others Vs. State of Madhya Pradesh, this Court, while refusing to commute the death sentence, observed: (SCC p.82. para
6)
''...It will be mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts.
To give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will lose faith in
courts. In such cases he understands and appreciates the language of deterrence more than the reformative jargon''.
As the above observations squarely apply in the facts of the instant case we uphold the sentence of death imposed upon the appellant"".
Thereafter, the petitioner submitted his mercy petitions both to The President of India and The Governor of Tamil Nadu on 6.5.1998 itself. The
same were forwarded by the Superintendent of Central Prison, Coimbatore to the Home Department, Government of Tamil Nadu on 6.5.1998
itself. The Government of Tamil Nadu forwarded the same on 13.8.1998 to The President of India. The Governor of Tamil Nadu rejected the
mercy petition on 2.9.1998 itself. The President of India rejected the mercy petition on 27.10.1999, which has been communicated to the
petitioner on 30.10.1999. The said proceedings are now under challenge in this Writ Petition.
Mr.Manoj Pandian, learned counsel appearing for the petitioner has submitted that the mercy petition was disposed of with the delay of one
year and five months and so the capital punishment has to be commuted to life imprisonment. He has further submitted that there is no explanation
for the said delay of one year and five months in passing the said proceedings and so the petitioner is entitled for the relief sought for. In support of
his submission, the learned counsel has relied on a number of decisions of this Court and of the Apex Court, which will be dealt with later.
Mr.Prasad and Mr.Giridhar, learned counsel for respondents 7 and 8 respectively while supporting the above said submission of the learned
counsel appearing for the petitioner, have submitted that every day''s delay has to be explained and the reason for such rejection should be given
by The President of India, as the said proceedings are subjected to judicial review on merits. It is also submitted that The President of India has to
act only on the advice of the Council of Ministers before exercising powers under Article 72 of the Constitution of India. According to them, in the
present case, no such advice has been given to The President of India. The power to be exercised under Article 72 of the Constitution of India is
an executive function and not executive power and so such executive function cannot be the subject matter of Business Rules.
Mr.Prasad and Mr.Giridhar, learned counsel appearing for the 7th and 8th respondents have further submitted, with eager to save the life of the
petitioner, that though it is well settled that the delay in disposing of the case by the Courts cannot be taken into consideration, the delay in the
hands of the Executive in disposing of the mercy petition has to be taken into consideration due to which the petitioner has suffered mental agony.
They have also submitted that the act of pardon by The President of India under Article 72 of the Constitution of India is not a private act of grace,
but it is a part of the constitutional scheme.
Mr.Ramakrishna Reddy, learned counsel appearing for the 3rd respondent with his usual persuasion placed the facts and law on the point to
defend the stand taken by the respondents 1 and 3. He has submitted that merely on the basis of the delay in disposing of the mercy petition filed
by the petitioner, the relief as sought for cannot be granted, especially when the delay has been explained reasonably and property. It is his further
submission that the delay occurred in this case cannot be construed as an unreasonable one. He has also submitted that the petitioner was on bail
from 1988 and he was again put inside the prison only in 1997. He has further submitted that the order of The President of India cannot be
subjected to judicial review, except under certain circumstances, and so The President of India need not give any reason in support of His
conclusion arrived at in deciding the mercy petition. His further submission is that advice was given by the concerned Minister to The President of
India in compliance of the scope of Article 72 of the Constitution. It is also vehemently submitted by him that the gravity of the offence committed
by the petitioner has also been taken into consideration. According to him, the fact that the petitioner had taken away the lives of five persons has
to be taken into consideration.
On consideration of the above said pleadings and the arguments, 1 find it necessary to deal with the following issues in this case:-
(1) Whether the rejection of the petitioner''s mercy petition, after a delay of one year and five months, gives right to the petitioner to claim
protection under Article 21 and consequently commutation of capital punishment of death?
(2) Is it necessary that the President of India to give reasons while dealing with the mercy petition of the petitioner, exercising powers under Article
72 of the Constitution of India?
(3) Did The President of India deal with the mercy petition of the petitioner, after getting advice from the Council of Ministers?
In this case, we are concerned with the rejection of the mercy petition filed by the petitioner before The President of India. The President of
India exercising powers under Article 72 of the Constitution of India, has dealt with the mercy petition of the petitioner.
Article 72 of the Constitution reads as follows:-
Power of President to grant pardons, etc.; and to suspend, remit or commute sentences in certain cases:-
(1) 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 offences:-
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union
extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend,
remit or Commute a sentence passed by a Court Martial.
(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of
a State under any law for the time being in force"".
The powers of The President and the Governors were similar to the powers of Crown under British Parliamentary system. From 1937, when
the Government of India Act 1935 came into force, the law of pardon in India was contained in Section 295 of the Act and in Sections 401 and
402 of the Criminal Procedure Code 1898. The result, therefore was, until our Constitution came into force, the exercise of King''s prerogative
remained unaffected. Even after coming into force of the Constitution, the abovesaid Sections 401 and 402 of the Criminal Procedure Code, 1898
were continued to be in force. However, the power of pardon has been conferred on The President and The Governors of States under Articles
72 and 161 of the Constitution respectively.
The power of The President of India to grant reprieves and pardons has been judicially interpreted to include the power to commute or to
remit sentence of punishment. The said power of pardon includes the power to commute, as, where the sentence of death is to be commuted as
one of imprisonment of life or to remit the punishment in whole or in part.
All powers provided in the Constitution belong to the people, and are entrusted by them to specific institutions and functionaries with the
intention of working out, maintain and operating a constitutional order. There cannot be any attributes more important than the life and personal
liberty of people in the civilised society. That is why, Courts have given much importance to Article 21 of the Constitution, and deprivation of
personal liberty and threat of deprivation of life by the action of the State were regarded seriously, and recourse is provided to the judiciary. It has
also been considered that in the matter of life and personal liberty, protection should be extended by entrusting power further to some higher
authorities to scrutinies the validity of the threaten denial of life or the threaten or continued denial of personal liberty. Such power belonging to the
people is reposed on the highest functionaries of the State.
In England such power is regarded as a royal prerogative of the pardon exercised by the sovereign through the Home Secretary. In the United
States, after the founding of the republic the pardon of The President has been regarded not as a private act of grace but as a part of constitutional
scheme. In Indian Republic also the power to pardon is treated as a part of the constitutional scheme and it is reposed by the people through
Constitution in the Head of the State, and enjoys higher status. Such a constitutional responsibility of great significance has to be exercised when
occasion arises in accordance with the discretion contemplated by the context.
The power to pardon rests on the advice rendered 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. The power under Article 72 of the Constitution is to be exercised on the advice as
contemplated under Article 74 of the Constitution of India. It is open to The President of India in exercise of powers vested in him under Article 72
of the Constitution to scrutinise the evidence on record of the criminal case and come to a conclusion in regard to the guilt of, and sentence
imposed on the accused and also to determine for himself whether the case is one which deserves to grant relief falling within that power. In doing
so, it cannot be understood that The President is amending, modifying or substituting the judicial record. The President of India acts under the
constitutional power which is entirely different from the judicial power, and the same cannot be regarded as an extension of it. The legal effect of a
pardon is wholly different from judicial super cession of the original sentence.
The Courts have held that judicial review of the order of The President of India is very restricted and within the strict limitation as defined in
Maru Ram and Others Vs. Union of India (UOI) and Others, . It is further held that Courts need not give any guidelines for regulating such
exercise of power, as there is sufficient indication in the terms of Article 72 of the Constitution and in the history of the power enshrined in that
provision as well as existing case laws, and it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines,
as the power is on the widest amplitude, and can contemplate 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.
In this case, it is the specific submissions of the learned counsel appearing for the petitioner and the respondents 7 & 8 to the effect that no
such advice was given to The President of India. Mr.Ramakrishna Reddy, learned counsel appearing for respondent No. 3 has produced the
original file which clearly establishes that the Home Minister has given advice on the mercy petition of the petitioner/condemned prisoner, and
elaborate reasonings have been given in support of such advice. So, in this case it cannot be said that there is no advice given to The President of
India to deal with the mercy petition of the petitioner.
Then the question will arise, whether such advice of the Home Minister alone is enough or the Council of Ministers has to give advice to The
President of India to exercise the power under Article 72 of the Constitution of India. Under the Parliamentary democracy, the real power of The
Government rests in the Prime Minister and the Council of Ministers. The head of State, The President remains a constitutional head of the nation.
He acts in accordance with the aid and advice tendered to him by the Council of Ministers with The Prime Minister as its head. Such advice
tendered is binding on The President of India.
Dr. Ambedkar''s comprehensive statement introducing the Draft Constitution on November 4, 1948 is scintillating. He said:
In the Draft Constitution there is placed at the head of the Indian Union a functionary who is called the President of the Union. The title of this
functionary reminds one of the President of the United States. But beyond identity of names there is nothing in common between the form of
government prevalent in America and the form of government proposed under the Draft Constitution. Under the Draft Constitution the President
occupies the same position as the King under the English Constitution. He is, the head of the State but not the executive. He represents the nation
but does not rule the nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the
nation''s decisions are made known. Under the American Constitution the President has under him Secretaries in charge of different Departments.
In like manner the President of the Indian Union will have under him Ministers in charge of different departments of administration. Here again there
is a fundamental difference between the two. The President of the United States is not bound to accept any device tendered to him by any of his
Secretaries. The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice
nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian
Union has no power to do so so long as his Ministers command a majority in Parliament.
You can have a system which can give you more stability but less responsibility or you can have a system which gives you more responsibility but
less stability. The American and the Swiss systems give more stability but less responsibility. The British system on the other hand gives you more
responsibility but less stability.
In England, where the Parliamentary system prevails, the assessment of responsibility of the executive is both daily and periodic. The daily
assessment is done by members of Parliament, through questions, resolutions, no-confidence motions, adjournment motions, and debates on
addresses. Periodic assessment is done by the electorate at the time of the election which may take place every five years or earlier. The daily
assessment of responsibility which is not available under the American system is, it is felt, far more effective than the periodic assessment and far
more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of executive has preferred more
responsibility to more stability.
Article 74 of the Constitution deals with such aid and advice to The President of India. It would be appropriate to set out the same, which is as
follows:-
74, Council of Ministers to aid and advice President:- (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and
advice the President who shall, in the exercise of his functions, act in accordance with such advice.
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall
act in accordance with the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court"".
Though The President of India is clothed with several powers and functions, the same shall be exercised only on the aid and advice of the
Council of Ministers with the Prime Minister at its head. Every action taken by The President of India is the real action of His Ministers and
subordinates. The President of India cannot be called upon to answer to justify the action with respect to the action taken by the Executive in the
name of The President of India as contemplated under Article 77 of the Constitution. Advice tendered by a Minister has to be taken as the advice
tendered by the Council of Ministers. This is in view of the principles of joint responsibility of the cabinet/Council of Ministers. The abovesaid view
of mine is supported by the decisions of the Apex Court.
While dealing with collective responsibility by the council of Ministers, the Constitution Bench of the Apex Court in A. Sanjeevi Naidu, etc. Vs.
State of Madras and Another, held as follows:
The cabinet is responsible to the legislature for every action taken in any of the mini stories. That is the essence of joint responsibility. That does
not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot
predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is
responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal
responsibility.
In S.R. Bommai and others Vs. Union of India and others etc. etc., , in which it has been held as to follows: -
(19) Article 53(1) insofar as says that the executive power of the Union, which vests in the President, can be exercised by him either directly or
through officers subordinate to him in accordance with the Constitution stresses the very idea. Even where he acts directly, the President has to act
on the aid and advice of the Council of Ministers or the Minister concerned, as the case may be. (Advice tendered by a Minister is deemed to be
the advice tendered by the Council of Ministers in view of the principle of joint responsibility of the Cabinet/Council of Ministers). If such act is
questioned in a Court of law, it is for the Minister concerned (according to rules of business) or an official of that Ministry to defend the Act.
Where the President acts through his subordinates, it is for that subordinate to defend the action"".(Italics supplied)
In view of the abovesaid decision of the Apex Court, it cannot be said that the advice should be given only by the Council of Ministers and the
advice of the concerned Minister is not enough. So, the submission of Mr.Ramakrishna Reddy, learned counsel appearing for the respondents 1
and 3 that The President of India has exercised his powers under Article 72 of the Constitution after getting advice from the Minister concerned is
well founded.
The learned counsel appearing for the respondents 7 and 8 have submitted that the order of rejection of the mercy petition by The President of
India does not contain any reasons. According to them, such order is subjected to judicial review, and, unless reasons are given. Courts cannot
appreciate as to how The President of India applied his mind. It is also submitted that if no reasonings are given, it has to be taken that The
President of India has passed the order without applying his mind. This submission also has been successfully defended by Mr.Ramakrishna
Reddy, learned counsel appearing for respondents 1 and 3, by relying on the decisions of the Supreme Court, in support of his submissions.
There cannot be any dispute that the order of rejection of the mercy petition by The President of India is subjected to judicial review. But,
while dealing with the power of The President of India under Article 72 of the Constitution, the five Judges'' Bench of the Apex Court in Maru
Ram and Others Vs. Union of India (UOI) and Others, , has held as follows:-
(59) It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are coextensive. But two things may be
similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a
high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is
different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and,
obviously, the constitutional power is ''untouchable'' and ''unapproachable'' and cannot suffer the vicissitudes of simple legislative processes.
Therefore, Section 433-A cannot be invalidated as indirectly violative of Articles 72 and 161. What the Code gives, it can take, and so, an
embargo on Sections 432 and 433(a) is within the legislative power of Parliament.
(60) 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 the 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"".
On the basis of the above discussion, the Apex Court has formulated the guidelines to extend the judicial hand. The portion which is relevant
for the present case has been extracted below:-
(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or
Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is
necessary but any general order made must be clear enough to identify the group of cases and indicate.
(9) Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate
Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the
court examine the exercise.
(10) Although the remission rules or short-sentencing provisions proprio vigore may not apply as against Section 433-A, they will override Section
433-A if the government. Central or State, guides itself by the self-same rules or schemes in the exercise of its constitutional power. We regard it
as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking - a desirable
step, in our view -the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release
passed. We cannot fault the government, if in some intractably savage delinquents. Section 433-A is itself treated as a guideline for exercise of
Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for the Government, Central or State, to decide
whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme"".
Fazal Ali, J., while concurring with the judgment of Krishna Iyer, J., who is the author of the above said judgment, has taken into consideration
the necessity of deterrent punishment. The following is the relevant portion of his telling in the said decisions-
(91) 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 Vs. 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 Penal Code but would have
happened if deterrent punishments were not given. In the present distressed and disturbed atmosphere we feel that if deterrent 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.
(92) For these reasons, I am clearly of the opinion that in cases where Section 433-A applies, no question of reduction of sentence arises at all
unless the President of India or the Governor choose to exercise their wide powers under Article 72 or Article 161 of the Constitution which also
have to be exercised according to sound legal principles as adumbrated by brother Krishner Iyer, J. I therefore, think that any reduction or
modification in the deterrent punishment would far from reforming the criminal be counter-productive.
It is well settled that where a power is rested in a very high authority, it seems to be presumed that such authority would act properly and
carefully after an objective consideration of all the aspects of the matter. In the abovesaid decision of the Apex Court, it has also been held as
follows:-
(94) Doubtless, the President of India under Article 72 and the State Government under Article 161 have absolute and unfettered powers to grant
pardon, reprieves, remissions, etc. This power can either be altered, modified nor interfered with by any statutory provision. But, the fact remains
that higher the power, the more cautious would be its exercise. This is particularly so because the present enactment has been passed by the
Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising the powers under the aforesaid
articles of the Constitution neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook
the object, spirit and philosophy of Section 433-A so as to create a conflict between the legislative intent and the executive power. It cannot be
doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act
properly and carefully after an objective consideration of all the aspects of the matter"".
The abovesaid decision which has been followed subsequently is an authority under the subject to appreciate the scope of judicial review on
the orders passed by The President of India on the mercy petitions. It is clear from the abovesaid dictum that Court cannot extend its power to
have a review of the order of The President passed under Article 72 of the Constitution freely, but only if it is established that it is wholly irrelevant,
irrational, discriminatory and mala fide.
This decision has been followed in the decision in Kehar Singh and Another Vs. Union of India (UOI) and Another, . As stated earlier, The
President of India has to deal with mercy petition under Article 72 of the Constitution only on the advice rendered to The President. While dealing
with the power of the Court, it has been held in the decision in Doypack Systems Pvt. Ltd. Vs. Union of India (UOI) and Ors, that there cannot be
any inquiry by the Court with respect to the nature of advice tendered by the Ministers to The President of India.
As stated above, in the decision in Kehar Singh and Another Vs. Union of India (UOI) and Another, while approving the limitations on the
judicial review, as said in Maru Ram''s case, 1980 (1) SCC 107, it has been held as follows:-
(11) In the course of argument, the further question raised whether judicial review extends to an examination of the order passed by the President
under Article 72 of the Constitution. At the outset we think it should be clearly understood that we are confined to the question as to the area and
scope of the President''s power and not with the question whether it has been truly exercised on the merits. Indeed, we mink that the order of the
President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram and Others Vs. Union of
India (UOI) and Others, . The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or
legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the
court. In Special Reference No.1 of 1964 In the matter of: Under Article 143 of the Constitution of India, , Gajendragadkar, C.J., speaking for the
majority this Court, observed:
...whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted
to the Judicature in this Country the task of construing the provisions of the Constitution...
This Court in fact proceeded in State of Rajasthan v. Union of India, to hold: (SCC p.661, para 149):
So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainty be
decided by the Court. Indeed it would be its constitutional obligations to do so. This Court is the ultimate interpreter of the Constitution and to this
Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what
are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the
constitutional limitations. That is the essence of the rule of law. And in Minerva Mills Ltd. and Others Vs. Union of India (UOI) and Others, ,
Bhagawati, J.,said: (SCC p.677, para 87)
...the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State
and whether such limits are transgressed or exceeded.... The Constitution has, therefore, created an independent machinery for resolving these
disputes and this independent machinery is the judiciary which is vested with the power of judicial review....
It will be noted that the learned Judge observed in S.P. Sampath Kumar and Others Vs. Union of India (UOI) and Others, that this was also the
view of the majority Judges in Minerva Mills Ltd. and Others Vs. Union of India (UOI) and Others, .
Even in the decision in Triveniben Vs. State of Gujarat, :
while concurring with the judgment of the other Hon''ble Judges, His Lordship Mr.Justice K. Jagannatha Shetty has given his own judgment on the
issue. In his judgment, he has dealt with the scope of judicial review as follows:-
(73). What should be done by the Court is the next point for consideration. It is necessary to emphasise that the jurisdiction of the Court at this
stage is extremely limited. If the Court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay
either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay. The
matter, therefore, must be expedititiously and on top priority basis, disposed of. The Court while examining the matter, for the reasons already
stated, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The Court also cannot take into consideration the
time taken for disposal of any petition filed by or on behalf of the accused either under Article 226 or under Art. 32 of the Constitution after the
final judgment affirming the conviction and sentence. The Court may only consider 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. The Court has still to consider as observed in Sher Singh and
Others Vs. State of Punjab, :-
''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''-"".
Even in the decision in S.R. Bommai and others Vs. Union of India and others etc. etc., , the Apex Court has held as to follows:-
Then comes clause (2) of Article 74 which says that the question ''whether any, and if so, what advice was tendered by the Ministers to the
President shall not be inquired into in any court''. The idea behind clause (2)is this: The court is not to enquire - it is not concerned with - whether
any advice was tendered by any Minister or Council of Ministers to the President, and if so, what was that advice. This is a matter between the
President and his Council of Ministers. What advice was tendered, whether it was required to be reconsidered, what advice was tendered after
reconsideration, if any, what was the opinion of the President, whether the advice was changed pursuant to further discussion, if any, and how the
ultimate decision was arrived at, are all matters between the President and his Council of Ministers. They are beyond the ken of the court. The
court is not to go into it. It is enough that there is an order/act of the President in appropriate form. It will take it as the order/act of the President. It
is concerned only with the validity of the order and legality of the proceedings or action taken by the President in exercise of his functions and not
with what happened in the inner councils of the President and his Ministers. No one can challenge such decision or action on the ground that it is
not in accordance with the advice tendered by the Ministers or that it is based on no advice. If, in a given case, the President acts without, or
contrary to , the advice tendered to him, it may be a case warranting his impeachment, but so far as the court is concerned, it is the act of the
President"".
Having stated so, the Apex Court, has further explained the limited scope of judicial review as follows:-
If the act or order of the President is questioned in a court of law, it is for the Council of Ministers to justify it by disclosing the material which
formed the basis of the act/order. The court will not ask whether such material formed part of the advice tendered to the President or whether that
material was placed before the President. The court will not also ask what advice was tendered to the President, what deliberations or discussions
took place between the President and his Ministers and how was the ultimate decision arrived at. The court will only see what was the material on
the basis of which the requisite sat if act ion is formed and whether it is relevant to the action under Article 356(1). The court will not go into the
correctness of the material or its adequacy. Even if the court were to come to a different conclusion on the said material, it would not interfere since
the article speaks of satisfaction of the President and not that of the court"".
Recently, in the decision in Swaran Singh Vs. State of U.P. and Others, , the Apex Court had an occasion to deal with the scope of judicial
review with regard to powers under Article 72 of the Constitution of India, in which the Apex Court has held as follows:-
(12) In view of the aforesaid settled legal position, we cannot accept the rigid contention of the learned counsel for the third respondent that this
Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily,
mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such
cases, the judicial hand must be stretched to it.
(13) In the present case, when the Governor was not posted with material facts such as those indicated above, the Governor was apparently
deprived of the opportunity to exercise the powers in a fair and just manner. Conversely the order now impugned fringes on arbitrariness. What the
Governors would have ordered if he were apprised of the above facts and materials is not for us to consider now because the Court cannot then
go into the merits of the grounds, which persuaded the Governor in taking a decision in exercise of the said power. Thus, when the order of the
Governor impugned in these proceedings is subject to judicial review within the strict parameters laid down in Maru Ram and Others Vs. Union of
India (UOI) and Others, and reiterated in Kehar Singh and Another Vs. Union of India (UOI) and Another, we feel that the Governor shall
reconsider the petition of Doom Nah in the light of those materials which he had no occasion to know earlier"".
So, from the abovesaid decisions, to stretch judicial hand, it has to be established that The President by exercising his powers has passed the
order arbitrarily, mala fide, discriminatory with unfair and unjust manner or in absolute disregard of the finer canons of the constitutionalism. In the
present case, it is specific case of the petitioner that the order cannot be sustained in view of the delay in considering his petition, It is also
submitted that since no reason is given in support of his conclusion, it has to be taken as The President exercised his powers arbitrarily. Moreover,
in this case, the petitioner has not set out any mala fide allegations against the respondents. As The President of India has passed the order on the
basis of the materials, it cannot be said that The President of India has approached the issue in an arbitrary manner and the order is not fair and
proper.
So, now it has to be considered whether this Court can interfere with the conclusion of the order of The President of that ground. For that, it
has to be found out whether The President is obliged to give reasons in his order.
The Constitution Bench consists of nine Hon''ble Judges of the Apex Court in S.R. Bommai and others Vs. Union of India and others etc. etc.,
, has dealt with the scope of judicial review on the order passed by The President or India on the basis of the advice given by the Council of
Ministers. In the said decision. His Lordship Mr.Justice S.Ratnavelpandian, (as he then was) in his separate judgment has; held as follows:-
It would suffice to say that since form part of the advice, the Court would be precluded that Article 74(2) of the Constitution is no bar to
production of all materials on which ministerial advice was based"".
His Lordship Mr.Justice K.Ramaswsamy, in his judgment has observed that the Court cannot go into the question of adequacy of materials or
situation distinguishing the declaration of the President''s Rule. He has further held in his judgment as follows:-
(216) To test the satisfaction reached by the President there is no satisfactory criteria for judicially discoverable and manageable standards that
what grounds prevailed with the President to reach his subjective satisfaction. There may be diverse, varied and variegated considerations for the
President to reach the satisfaction. The question of satisfaction is basically a political one, practically it is an impossible question to adjudicate on
any judicially manageable standards. Obviously the Founding Fathers entrusted that power to the highest executive, the President of India, with the
aid and advice of the Council of Ministers. The satisfaction of the President being subjective, it is not judicially discoverable by any manageable
standards and the court would not substitute their own sat if act ion for that of the President. The President''s satisfaction would be the result of his
comprehending in his own way the facts and circumstances relevant to the satisfaction that the Government of the State cannot be carried on in
accordance with the provisions of the Constitution. There may be wide range of situations and sometimes may not be enumerated, nor can there be
any satisfactory criteria, but on a conspectus of the facts and circumstances the President may reach the satisfaction that the Government of the
State cannot be carried on in accordance with the provisions of the Constitution. Therefore, the subjective satisfaction is not justiciable on any
judicially manageable standards. Moreover, the executive decision of the President receives the flavour of the legislative approval after both
Houses of Parliament have approved the Proclamation and executive satisfaction ceases to be relevant. Article 100 of the Constitution protects the
parliamentary approval from assailment on any ground. The judicial review becomes unavailable. That apart a writ petition under Article 226, if it is
maintainable to question the satisfaction, equally a declaration that a situation has arisen in the State to clamp emergency or to declare President''s
rule by judicial order is permissible and cannot be wished away. Could it be done?, (Italics supplied)
............ ............... .............
(255) Judicial review is a basic feature of the Constitution. This Court/High Courts have constitutional duty and responsibility to exercise judicial
review as sentinel on the qui vive. Judicial review is not concerned with the merits of the decision, but with the manner in which the decision was
taken. The exercise of the power under Article 356 is a constitutional exercise of the power. The normal subjective satisfaction of an administrative
decision on objective basis applied by the courts to administrative decisions by subordinate officers or quasi-judicial or subordinate legislation does
not apply to the decision of the President under Article 356.
While distinguishing justiciabillty judicial review, the learned Judge has held as follows:
(256) Judicial review must be distinguished by the court. The two concepts are not synonymous. The power of judicial review is a constituent
power and cannot be abdicated by judicial process of interpretation. However, justiciability of the decision taken by the President is one of
exercise of the power by the court hedged by self-imposed judicial restraint. It is cardinal principle of our Constitution that no one, howsoever
lofty, can claim to be the sole judge of the power given under the Constitution. Its actions are within the confines of the powers given by the
Constitution.
The learned Judge has also held that judicial review is not concerned with the merits of the decision, but with the decision making process.
Their Lordships Mr. Justice Jeevan Reddy and Mr. Justice S.C. Agrawal in their concurring judgments have held that there is no uniform rule
applicable to all cases regarding the scope and reach of judicial review but it is bound to vary depending upon the subject matter, nature of right
and various other factors and that if a proclamation is found to be mala fide or found to be based on wholly extraneous and/or irrelevant ground, it
is liable to be struck down. The truth or correctness of mala fide cannot be questioned by the Court nor will it go into the adequacy of material.
They have also held in their judgment as follows:-
(375) it is necessary to reiterate that the court must be conscious while examining the validity of the Proclamation that it is a power vested in the
highest constitutional functionary of the Nation. The court will not lightly presume abuse or misuse. The court would, as it should, tread wearily,
making allowance for the fact that the President and the Union Council of Ministers are the best judges of the situation, that they alone are in
possession of information and material-sensitive in nature sometimes and that the Constitution has trusted their judgment in the matter. But all this
does not mean that the President and the Union Council of Ministers are the final arbiters in the matter or that their opinion is conclusive.
While differentiating the scope of judicial review in deciding the power exercised by the highest constitutional authority and in other matters, the
learned Judges have held as follows:-
Having regard to the fact that this is a high constitutional power exercised by the highest constitutional functionary of the Nation, it may not be
appropriate to adopt the tests applicable in the case of action taken by statutory or administrative authorities - nor at any rate, in their entirety. We
would rather adopt the formulation evolved by this Court in State of Rajasthan and Others Vs. Union of India and Others, as we shall presently
elaborate. We also recognise, as did the House of Lords in CCSU v. Minister for the Civil Service, 1985 AC 374 : 1984 (3) All. ER 935 that
there are certain areas including those elaborated therein where the court would leave the matter almost entirely to the President/Union
Government. The court would desist from entering those arrears, because of the very nature of those functions. They are not the matters which the
court is equipped to deal with. The court has never interfered in those matters because they do not admit of judicial review by their very nature.
Their Lordships. Mr. Justice Jeevan Reddy and Mr. Justice S.C. Agrawal, in their judgment have also held as follows: -
(320) Articles 74 and 77 are in a sense complimentary to each other, though they may operate in different fields. Article 74(1) deals with the acts
of the President done in exercise of his functions'', whereas Article 77 speaks of the executive action of the Government of India which is taken in
the name of the President of India. Insofar as the executive action of the Government of India is concerned, it has to be taken by the
Minister/official to whom the said business is allocated by the rules of business made under clause (3) of Article 77 for the more convenient
transaction of the business of the Government of India. All orders issued and the instruments executed relatable to the executive action of the
Government of India have to be authenticated in the matter and by [he officer empowered in that behalf. The President does not really come into
the picture so far as Article 77 is concerned. All the business of the Government of India is transacted by the Ministers of other officials
empowered in that behalf, of course, in the name of the President. Orders are issued, instruments are executed and other acts done by various
Ministers and officials, none of which may reach the President or may be placed before him for his consideration. There is no occasion in such
cases for any aid and advice being tendered by the President by the Council of Ministers. Though expressed in the name of the President, they are
the acts of the Government of India. They are distinct from the acts of the President in the exercise of his functions contemplated by Article 74. Of
course, even while acting in exercise of his functions, the President has to act in accordance with the aid and advice tendered by the Council of
Ministers with the Prime Minister at its Head. (The proviso to clause (1) no doubt empower him to require the Council of Ministers to reconsider
such advice, either generally or in any particular case, but if and when the Council of Ministers tenders the advice on such reconsideration, he is
bound by it.) Then comes clause (2) of Article 74 which says that the question ""whether any, and if so, what advice was tendered by their
Ministers to the President shall not be inquired into in any court.'' The idea behind clause (2) is this: The court is not to enquire - it is not concerned
with - whether any advice was tendered by any Minister or Council of Ministers to the President and his Council of Ministers. What advice was
tendered, whether it was required to be reconsidered, what advice was tendered after consideration, if any what was the opinion of the President,
whether the advice was changed pursuant to further discussion, if any, and how the ultimate decision was arrived at. are all matters between the
President and his Council of Ministers. They are beyond the ken of the court. The court is not to go into it. It is enough that there is an order/act of
the President in appropriate form. It will take it as the order/act of the President. It is concerned only with the validity of the order and legality of
the proceeding or action taken by the President in exercise of his functions and not with what happened in the inner councils of the President and
his Ministers.
............. ........... ...........
(323) Evidence Act is a pre-constitution enactment. Section 123 enacts a rule of English Common Law that no one shall be permitted to give
evidence derived from unpublished official records relating to affairs of State except with the permission of the concerned head of the department.
It does not prevent the head of department permitting it or the head of the department himself giving evidence on that basis. The law relating to
Section 123 has been elaborately discussed in several decisions of this Court and is not in issue herein. Our only object has been to emphasise that
Article 74(2) and Section 123 cover different and distinct areas. It may happen that while justifying the Government''s action in court, the Minister
or the official concerned may claim a privilege u/s 123. If and when such privilege is claimed, it will be decided on its own merits in accordance
with the provisions of that section. But Article 74(2) does not and cannot mean that the Government of India need not justify the action taken by
the President in the exercise of his functions because of the provisions contained therein. No such immunity was intended - or is provided - by the
clause. If the act or order of the President is questioned in a court of law, it is for the Council of Ministers to justify it by disclosing the material
which formed the basis of the act/order. The court will not also ask what advice was tendered to the President, what deliberations or discussions
took place between the President and his Ministers and how was the ultimate decision arrived at. The court will only see what was the material on
the basis of which the requisite satisfaction is formed and whether it is relevant to the action under Article 356(1). The court will not go into the
correctness of the material or its adequacy even if the court were to come to a different conclusion on the said material- it would not interfere since
the article speaks of satisfaction of the President and not that of the court."" (Italics supplied)
From the above, it is very clear that the Court cannot go into correctness of the decision or into the merits and also cannot go into the sufficiency of
the material available before the President for taking decision. If this court cannot go into correctness of the decision of the President, this Court
need not insist the President to give reasons in support of his conclusion, especially when it is established that there are materials placed before the
President for his perusal and to form his satisfaction.
The Full Bench of Punjab and Haryana High Court in the decision in Hukam Singh Vs. The State of Punjab and Others, while dealing with the
order of remission, it has been held as follows:-
As regards this question it was straightaway conceded by the learned counsel for the petitioner that the law does not enjoin upon the State
Government to give reasons for remitting the unexpired portion of the sentence in the order of remission. As regards the later portion of this
question, it is to be observed that if there is no requirement of taw to give reasons in the impugned order itself as a corollary it will follow that it will
not be the legal duty of the respondents to give reasons which lead to the passing of the order in the return to be filed if the petitioner has not given
grounds supported by prima facie evidence to prove that the power has been exercised mala fide.. Of course if certain allegations are made in the
petition, the State Government is duty bound to give a reply to the said allegations and if it fails to do so, presumption may be drawn against it that
it has failed to rebut the allegations made in the petition. But in a case where no concrete grounds of attack are given in the petition it cannot be
expected from the Government to justify its order by giving reasons which led to the passing of the impugned order, in the return, when no legal
duty is presumed that the highest authority, which is vested with this wide and unfettered powers, will misuse the said power until and unless the
misuse of the power is proved. On the other hand, the presumption of correctness is attached to the acts done in the official discharge of the duties
until and unless it is proved otherwise.
While the said Full Bench dealing with the responsibility of the petitioner to establish his case has further held as follows:-
As regards this point, it is to be held that the initial onus is on the petition to give prima facie evidence to show that the power has been
exercised mala fide. There is nothing in the order to show that it had been exercised mala fide. The impugned order itself at the face of it does not
show that the power had been exercised arbitrarily or for any extraneous reasons not germane to the purpose for which the said power was
conferred. The initial onus to prove prima facie the exercise of power mala fide always likes on the petitioner. In the present case, the learned
counsel for the petitioner frankly admitted that the petitioner is not in the know of the facts and circumstances under which the impugned order was
passed nor he is aware of the reasons which prevailed with the State Government which resulted in passing the impugned order. It is also frankly
conceded by Shri. Anand Swaroop, the learned counsel for the petitioner, that the law does not enjoin upon the State Government, in view of the
wide powers given to it u/s 401 of the Code of Criminal Procedure, that the reason for exercising the powers should be disclosed in the order: But
his contention is that though the law does not enjoin upon the State Government to disclose the reasons in the impugned order is questioned before
the Court even though the petitioner fails to allege concrete grounds of attack the State Government is bound to disclose the reasons before the
Court in order to justify the order. I am unable to agree with this contention. Any person who approaches the Court either in a civil suit or by way
of a writ petition, has to discharge the initial onus of proof and has to show prima facie that he has made out a case for calling upon the opposite
party to rebut the prima facie proof of illegality. The ordinary rule of evidence of onus of proof equally applies to the writ petitions."" (Italics
supplied)
From the above, it is very clear that the submission of Mr. Prasad, learned counsel appearing for the 7th respondent, that reasons must be given in
the order cannot be countenanced. Moreover, the petitioner has not alleged any mala fide nor any other irregularity in passing the order, except
saying that the order has been passed long after his presentation of the mercy petition.
Now, I am inclined to proceed to next question which has been argued elaborately by the learned counsel appearing for the petitioner and
respondents 7 and 8, namely, the delay in disposing the mercy petition by the Executive will give a right to the petitioner to get commutation.
Though the respective learned counsel have relied on a number of decisions to sustain their submissions, after going though the said decisions
carefully, I am not in a position to accept the submission that only on the basis of the delay, the petitioner has accrued the right of commutation of
the sentence.
In Vivian Rodrick Vs. The State of West Bengal, in which the Apex Court has come to the conclusions that the excessive delay even in the
disposal of the case itself would be sufficient for imposing a lesser sentence of imprisonment for life u/s 302 I.P.C. The Apex Court has also taken
into consideration the mental agony of the accused and has further held as follows:-
It seems to us that the extremely excessive delay in the disposal of the case of the appellant would by itself be sufficient for imposing a lesser
sentence of imprisonment for life u/s 302. Section 302 I.P.C. prescribes two alternate sentences, namely, death sentence or imprisonment for life,
and when there has been inordinate delay in the disposal of the appeal by the High Court it seems to us that it is a relevant factor for the High
Court to lake into consideration for imposing the lesser sentence. In this particular case, as pointed out above, the appellant was committed to trial
by the Presidency Magistrate as early as July 3.1, 1963, and he was convicted by the Trial Judge on September 4, 1964. It is now January, 1971,
and the appellant has been for more than six years under the fear of sentence of death. This must have caused him unimaginable mental agony. In
our opinion, it would be inhuman to make him suffer till the Government decides the mater on a mercy petition. We consider that this is now a fit
case for awarding the sentence of imprisonment for life. Accordingly we accept the appeal, set aside the order of the High Court awarding death
sentence and award a sentence of imprisonment for life. The sentences u/s 148, I.P.C., and Section 5 of the Explosive Substances Act and under
Sect i on 302 I.P.C. shall run concurrently.
In the decision in Kuljeet Singh alias Ranga Vs. Union of India (UOI) and Anr, , their Lordships of the Apex Court have expressed their hope
that The President will dispose of the mercy petition expeditiously as he finds his convenience. In the said decision, Their Lordships have taken into
consideration the nature of the offence committed by the condemned prisoner and found that the survival of an orderly society demands the
extinction of the life of persons like Ranga and Billa who are menace to social order and security.
After filing a petition under Article 72 of the Constitution of India, the above said persons filed a writ petition under Article 32 of the
Constitution of India before the Apex Court. The Apex Court has dealt with the said writ petition in a decision in Kuljeet Singh alias Ranga and
Another Vs. Lt.-Governor of Delhi and Others, , and from the reasons given by the Apex Court in the said decision, it is clear that the nature of
offence also should be taken into consideration for considering the mercy petition.
In the decision in Vasanta Vs. State of Maharashtra, , Their Lordships of the Apex Court have quashed the death sentence, by substituting the
sentence to imprisonment of life. Such order was passed by the Apex Court on the basis that there was a delay in the disposal of the case by the
Court, and it has been further held as follows:-
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 cavear, 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.
...... ...... .....
So, what do we have now? Arts. 14, 19 and 21 are not mutually exclusive. They sustain, strengthen and nourish each other. They are available
prisoners as well as free man. Prison is do not keep out Fundamental Rights. A person under sentence of death may a I so claim Fundamental
Rights. The fiat of Article 21, as explained that any procedure which deprives a person of his life or liberty must be just fair and reasonable. Just,
fair and reasonable procedure imples a right to free legal services where he cannot avail them. It implies a right to a speedy trial. It implies human
conditions of detention, preventive or punitive. Procedure established by law does not end with the pronouncement 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 Slates 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 Slates, (1973) 37 1. Ed 2d 56. Analogy
of American Constitution and generis, as we are bound to do. We find no impediment in holding that the dehumanising factor of prolonged delay in
the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as
to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by
law. The appropriate relief in such a case to vacate the sentence of death"".
In the decision in Sher Singh and Others Vs. State of Punjab, , the Apex Court has taken into consideration the long delay in the execution of
sentence imposed on [he contemned prisoner. In the said decision, the Apex Court has differed from the view taken in the decision in Vasanta Vs.
State of Maharashtra, , and it was found as follows:-
delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence to death to
invoke Article 21 and demand the quashing of the sentence of death.
It was also found as follows:
this period of two years purpurports to have been fixed in Vasanta Vs. State of Maharashtra, 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.
Having stated so, Their Lordships have further held as follows:-
fixation of lime 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.
In the said decision, it was also considered as to why the delay in executing a death sentence in each and every case should not be taken into
consideration to substitute the sentence of life imprisonment, and it has been held as follows:-
Apart from the fact that the rule of two years runs in the teeth of common experience as regards the time generally occupied by proceedings in
the High Court, the Supreme Court and before the executive authorities, we are of the opinion that no absolute or unqualified rule can be laid down
that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life
imprisonment. There are several other factors which must be taken into account while considering the question as to whether the death sentence
should be vacated. A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid of the sentence of death imposed upon
him and indeed, there is no one, be 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 SLP or appeal. But, it is, atleast, 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 wilt 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 where in 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.
There Lordships have also placed much reliance on the other circumstances which have to be taken into consideration before substituting the
sentence of life imprisonment, and it has been held as follows:-
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 if
quod erat demonstrandum.
Taking the said situation as an opportunity, Their Lordships have framed certain guidelines with respect to the disposal of the petitions filed
under Article 72 and 161 of the Constitution, and have held as follows:-
We must take this opportunity to impress upon the Government of India and the State Governments that petitions filed under Articles 72 and
161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self-imposed rule
should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the
date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and
indeed, such delays tend to shake the confidence of the people in the very system of justice. Several instances can be cited, to which the record of
this Court will bear testimony, in which petitions are pending before the State Governments and the Government of India for an inexplicably long
period. The latest instance is to be found in Criminal Writ Petition Nos.345-348 of 1983, from which it would appear that petitions filed under
Article 161 of the Constitution are pending before the Governor of Jammu and Kashmir for anything between five to eight years. A pernicious
impression seems to be growing that whatever the courts may decide, one can always turn-to the executive for defeating the verdict of the court by
resorting to delaying tactics. Undoubtedly, the executive has the power, in appropriate cases, to act under the afore said provisions but, if we may
remind, all exercise of power is pre-conditioned by the duty to be fair and quick. Delay defeats justice.
While dealing with a case in which the mercy petition was pending for four years, in spite of directions given by the Court to expedite its
process, the Apex Court, in the decision in K.P. Mohammed Vs. State of Kerala, ., has held as follows:-
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"".
Having held so, Their Lordships have taken into consideration of the circumstances of the case including those concerning the background and
motivation of the crime in the said case, set aside the death sentence imposed upon the condemned prisoner and the sentence of life imprisonment
was passed, and further held as follows:-
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"".
In the decision in Javed Ahmed Abdul Hamid Pawala Vs. State of Maharashtra, , Their Lordships, after satisfying with the overall view of all
the circumstances, it appeared to them to think that the condemned prisoner is entitled to invoke the protection of Article 21 of the Constitution.
While doing so. Their Lordships doubted the correctness of the principles laid down in Sher Singh and Others Vs. State of Punjab, , in which the
learned Judges dissented from the opinion expressed by the Court in Vasanta Vs. State of Maharashtra, , wherein it is held that the delay in the
execution of the sentence of death should be considered sufficient to entitle the person under the sentence of death to invoke Article 21 of the
Constitution and demanding quashing of sentence of death. The Apex Court after taking into consideration the overall view of all circumstances,
substituted the sentence of life imprisonment in the place of death sentence.
Though learned Judges of the Apex Court in the above mentioned case have doubted the correctness of the decision in Sher Singh and Others
Vs. State of Punjab, the Constitution Bench in Triveniben Vs. State of Gujarat, impliedly overruled the decision reported in Vasanta Vs. State of
Maharashtra, and impliedly approved the decision in Sher Singh and Others Vs. State of Punjab, The Constitution Bench while dealing with the
delay in the Court in disposing of the case has held as follows:-
Even in this Court although there does not appear to be a specific rule but normally these matters are given top priority. Although it was
contended that this reference before us, a Bench of five-Judges, was listed for hearing after along interval of time. We do not know why this
reference could not be listed except what is generally well known; the difficulty of providing a Bench of five-Judges but ordinarily it is expected that
even in this Court the matters where the capital punishment is involved will be given top priority and shall be heard of and disposed of as
expeditiously as possible but it could not be doubted that so long as the matter is pending in any Court before final adjudication even the person
who has been condemned or who has been sentenced to death has a ray of hope. It therefore could not be contended that the suffers that mental
torture which a person suffers when he knows that he is to be hanged but waits for the Dooms-day. The delay therefore which could be
considered while considering the questions of commutation of sentence of death into one of life imprisonment could only be from the date the
judgment by the apex Court is pronounced i.e., when the judicial process has come to an end.
After the matter is finally decided judicially, it is open to the person to approach the President or the Governor, as the case may be, with a
mercy petition. Sometimes a person or at his instance or at the instance of some of his relatives, mercy petition and review petitions are filed
repeatedly causing undue delay in execution of the sentence. It was therefore contended when such delay is caused at the instance of the person
himself he shall not be entitled to gain any benefit out of such delay. It is no doubt true that sometimes such petitions are filed but a legitimate
remedy, if available in law, a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that
alone will be a matter attracting the jurisdiction of this Court, to consider 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 however shall not be considered. The only
delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the
executive.
So far as the scope of the authority of the President and the Governor while exercising jurisdiction under Art.72 and Art. 161 are concerned
the question is not at alt relevant so far as the case in hand is concerned. But it must be observed that when such petitions under Article 72 or 161
are received by the authorities concerned it is expected that these petitions shall be disposed of expeditiously"".
While dealing with the argument that the delay in execution of the death sentence entitles a condemned prisoner to approach the Court as his
right under Art. 21 of the Constitution is being infringed, the Apex Court in the said decision has held as follows:-
But it will not be open to this Court in exercise of jurisdiction under Art. 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 jut 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. The question of improvement in the conduct of the prisoner after the final verdict also cannot be
considered for coming to the conclusion whether the sentence could be altered on that ground also"".
It has also been concluded by the Constitution Bench in the said decision as follows:-
So far as our conclusions are concerned we had delivered our Order on October 11, 1988 reported in Triveniben Vs. State of Gujarat, and
we had reserved the reasons to be given later. Accordingly in the light of the discussions above our conclusion is as recorded in our Order dated
October 11, 1988, reproduced below (para 21):
''Undue long delay in executing of the sentence of death will entitle the condemned person to approach this Court under Art. 32 but this Court will
only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and will have no
jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death. This Court, however, may consider the
question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should
be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the
decision in Vasanta Vs. State of Maharashtra, cannot be said to lay down the correct law and therefore to that extent stands overruled"".
His Lordship Mr.Justice Jagannatha Shetty, J., in his separate judgment has held that time taken in judicial proceedings by way of trial in
appeal was for the benefit of accused and if the Court awards death sentence, and if there is any delay in disposing of the case, there cannot be a
second look at the sentence, except by way of review. While considering the delay in disposing of the mercy petition. His Lordship has held as
follows:-
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 has also been held as follows:-
What should be done by the Court is the next point for consideration. It is necessary to emphasise that the jurisdiction of the Court at this
stage is extremely limited. If the Court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay
either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay. The
matter, therefore, must be expeditiously and on top priority basis, disposed of. The Court while examining the matter, for the reasons already
stated, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The Court also cannot take into consideration the
time taken for disposal of any petition filed by or on behalf of the accused either under Art. 226 or under Art. 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. The Court has still to consider as observed in Sher Singh and Others Vs. State of Punjab, :-
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 learned two Judges'' Bench in the subsequent decision in Daya Singh Vs. Union of India and others, , following the decision in Triveniben
Vs. State of Gujarat, has held as follows:-
In the absence of any reasonable explanation by the respondents we are of the view that if the concerned officers had bestowed the necessary
attention to the matter and devoted the time its urgency needed, we have no doubt that the entire process of consideration of the questions referred
would have been completed within a reasonable period without leaving any yawning gap rightly described by the learned Additional Solicitor
General as ''embarrassing gap''. There has, thus, been an avoidable delay, which is considerable in the totality of circumstances in the present case,
for which the condemned prisoner is in no way responsible"".
In the above said decision, the said Bench has also held as follows:-
As was cautioned by this Court in Triveniben Vs. State of Gujarat, , we are not laying down any rule of general application that the delay of two
years will entitle a convict, sentenced to death, to conversion of his sentence into one for life imprisonment, rather we have taken into account the
cumulative effect of all the circumstances of the case for considering the prayer of the petitioner. Although the fact that the petitioner has been
continuously detained in prison since 1972 was taken into account while rejecting his earlier writ petition, the same is not rendered completely
irrelevant for the purpose of the present case and we have taken it into consideration merely as a circumstance assuming significance as a result of
the relevant circumstances arising subsequent to the rendered in October, 1988"".
The three Judges'' Bench of the Apex Court in the decision in Shivaji Jaising Babar Vs. State of Maharashtra, while dealing with the similar
issue, has directed that the death sentence should not be carried out and the sentence of death be altered into one of imprisonment for life, and the
Bench has also held as follows:-
In view of the special facts and circumstances of the case, we without expressing any precise and decisive opinion to the fixed period within which
a mercy petition should be disposed of feel that justice demands modification of the sentence of death into one of life imprisonment"".
In another case, the two Judges'' Bench, in Jumman Khan Vs. State of U.P., , following the decision in Triveniben Vs. State of Gujarat, , has
decided the delay in the disposal of mercy petition as to whether there has been any undue delay or not.
The learned counsel appearing for the petitioner has relied on the Division Bench judgment of this Court in Haja Moideen and etc. Vs.
Government of India and Others, etc., , in which the learned Judges altered the death sentence into one of imprisonment of life. Such a conclusion
was arrived at by the Division Bench, though on the basis of the principles laid down by the Supreme Court, mainly on the ground that no
explanation has been offered either for the delay in forwarding the mercy petition to the President of India, nor for the delay in disposing of the
same by the President of India. It has also been taken into consideration that the delay was unreasonably long and the explanation if any offered
was unsatisfactory. Moreover, it is also stated that the Court was handicapped in not having any material to scrutinise if there were acceptable
reasons for the executive delay. Only on these reasons, the Division Bench has come to such conclusion. But, in this case, the respondents 1 to 3
have explained the delay, and it cannot be said that the delay is not properly explained nor unreasonable.
Even with respect to the other judgment of the Division Bench of this Court in Ragupathy, R., In re, 1983 L.W. (Crl.) 321, the learned Judges
have dealt with the power of the Government while dealing with the request for remission, and the said power cannot be equated with the power of
The President of India under Article 72 of the Constitution. Hence the said judgment also cannot be made applicable to the facts of the present
case.
Mr.Prasad, learned counsel appearing for respondent No.7 in support of his submission that the delay has to be taken into consideration for
the purpose of commuting the sentence, has relied on the decisions in Rajammal Vs. State of Tamil Nadu and Another, , Kamleshkumar Ishwardas
Patel Vs. Union of India (UOI) and Others, , Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India and Others, , and in B. Alamelu Vs. State of
Tamil Nadu and others, . In all the abovesaid cases, the Apex Court has dealt with the cases relating to preventive detention. As submitted by
Mr.Ramakrishna Reddy, learned counsel appearing for Respondents 1 and 3, the present case relates to punitive detention and it cannot be
compared with preventive detention. He has also relied on the decision of Bachan Singh Vs. State of Punjab, in support of his submission. The
Apex Court in the said decision has held as follows:-
In applying the above test, which was the same as adopted by Kanla, C.J., Fazal Ali, J., reached a conclusion contrary to that reached by the
Chief Justice, on the following reasoning:-
Punitive detention is however essentially different from preventive detention. A person is punitively detained only after a trial for committing a crime
and after his guilt has been established in a competent court of justice. A person so convicted can take his case to the State High Court and
sometimes bring it to this Court also ""and he can in the course of the proceedings connected with his trial take all pleas available to him including
the plea of want of jurisdiction of the court of trial and the invalidity of the law under which he has been prosecuted. The final judgment in the
criminal trial will thus constitute a serious obtacle in his way if he choose to assert even after his conviction that his right under Article 19(l)(d) has
been violated. But a person who is preventively detained has not to face such an obstacle whatever other obstacle may be in his way"".
Though Mr.Prasad, learned counsel appearing for Respondent No.7 has relied on the abovesaid decisions to establish that even the short delay in
disposal of the mercy petition has to be taken into consideration by the Courts while dealing with the same, it cannot be accepted in view of the
well settled principle that mere delay alone will not create a right on the petitioner to claim commutation of his death sentence. So, the abovesaid
decisions will not give any assistance to the case of the petitioner.
From the abovementioned decisions, it is clear that the petitioner cannot take advantage of the very fact that his mercy petition was disposed of
after one year and five months, and so he is entitled to invoke Article 21 of the Constitution to save his life. It is also clear from the abovesaid
decisions that the nature of offence, the overall circumstances of the case and the reason for the delay Lave also to be taken into consideration. As
stated earlier, in this case, the petitioner is in jail only from 1997 pursuant to the judgment of the High Court in the Criminal Appeal. So, the
petitioner cannot come forward with the plea that he was in jail for long number of years as happened in the decision reported in Vivian Rodrick
Vs. The State of West Bengal, and in Daya Singh Vs. Union of India and others, .
It is not in dispute that the mercy petition was filed by the petitioner on 6.5.1998. On 13.8.1998 the same was forwarded by the Government
of Tamil Nadu to The President of India after a period of delay of three months and six days. The Government of Tamil Nadu filed counter stating
that though the mercy petition was forwarded to the Government of Tamil Nadu by the Superintendent, Central Prison, Coimbatore by a letter
dated 6.5.1998, the para-war remarks on the mercy petition was offered by him on 2.6.1998 in response to the Government letter dated
14.5.1998. The Government informed the petitioner through the Superintendent, Central Prison, Coimbatore in the letter dated 2.9.1998 that the
mercy petition submitted to The Governor has been considered and rejected, and the Government of Tamil Nadu referred to the Government of
India, the mercy petition submitted to The President of India, along with the letter of the Government of Tamil Nadu dated 13.8.1998. The
Government of India filed additional counter affidavit through its Joint Secretary to Government, Minister of Home Affair, New Delhi setting out
the details for the delay in disposing of the said petition. According to them, they received the mercy petition from the Government of Tamil Nadu
on 26.8.1998. After examining the judgments of the trial Court, High Court and Supreme Court and other relevant materials, the file was submitted
to the Home Minister to tender his advice, on 2.11.1998. With the advice of the Home Minister, the same was forwarded on 19.11.1998 to The
President of India. The President of India had directed to get opinion of the Attorney General, on 9.2.1999. The same was referred to the
Attorney General for his opinion on 17.2.1999 through the Law Department and the opinion was received on 14.5.1999. Again it was resubmitted
to the Home Ministry on 11.6.1999. The file was submitted again to The President of India with further advice of the Home Minister on 9.7.1999.
The mercy petition was rejected by The President of India, on 20.10.1999 and the file was received back by the Home Minister on 26.10.1999
for communication of the decision of The President of India to the Government of Tamil Nadu, and the same was communicated to the
Government of Tamil Nadu on 27.10.1999. From the above, it is clear that the Executive have taken diligent steps on the mercy petition in the
midst of other administrative functions. We cannot expect the Executive to deal with the mercy petition onday-to-day basis. The above reasons set
out in the counter affidavit explaining the period taken to dispose of the mercy petition of the petitioner cannot be said to be unreasonable. They
have taken all steps to get it disposed of early. Hence the case of the petitioner that the delay in disposing of the mercy petition is unreasonable and
the executive had unduly delayed, cannot be countenanced.
Though Mr.Prasad, learned counsel appearing for the seventh respondent has submitted that there is no complaint, whatsoever, about the
conduct of the petitioner, after the occurrence, and in view of his young age, if he is allowed to live by substituting the sentence of life, nobody is
going to be prejudiced. This submission cannot be accepted, in view of the decision of the Apex Court, reported in Triveniben Vs. State of
Gujarat, in which it is held that the question of improvement in the conduct of the prisoner after the final verdict also cannot be considered by
coming to the conclusion that whether it should be altered on that ground also.
Though this Court is concerned with the life of the petitioner, the case cannot be decided on the basis of the sentiment and self-imposed
sympathy. Such sentiment also can play only within the frame of rule of law and it should not be allowed to override the said rule of law. Judges
themselves are prisoners of the law and they are not free to free a prisoner save through the open sesame of Justice according to law. It is not open
to the Court to be pursuaded by their own ideas about the propriety of particular purpose being achieved by a piece of penal legislation while
judging his constitutionality. A contrary proposition would mean the strapping of the judicial review of legislature which is not possible.
Though, prima facie, this Court was of the opinion that the petitions to imp lead the proposed parties-respondents need not be entertained, the
same are ordered with a view to get valuable assistance from Mr.N.G.R.Prasad and Mr.P.V.S.Giridhar to decide the issue. As expected they
have prepared well and presented all the case laws before this Court which have intensively helped this Court to render the judgment. So, I place
on record my appreciation of their service.
In view of the above discussion on the issue raised and in view of the fact that The President has passed the order after taking into
consideration of the entire materials and advice given to him, this Court is not inclined to accept the case of the petitioner and to interfere with the
impugned order. Hence this writ petition is dismissed accordingly. No costs. Consequently, W.M.P.Nos.26048 and 26049 of 1999 are also
dismissed.
K. Govindarajan, J.
After delivering the order, the learned counsel appearing for the petitioner has submitted that the implementation of the sentence may be suspended
for sometime so as to enable the petitioner to file Appeal. Taking into consideration the nature of the case, the respondents are directed not to
implement the sentence for ten days.