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Arunachalam, J.—The prisoners concerned in these petitions were verdicted by Court to die and are awaiting execution. Originally these
writ petitions were listed along with several other similar writ petitions which we have disposed of by a common order dated 15-12-1989. These
writ petitions were kept in abeyance since the Petitioners had desired to implead the Central Government as a party, for consideration of one of
their pleas raised in each one of these petitions. The disposals, of the earlier writ petitions, were based mainly on the long delay of the Executive, in
disposing of the mercy petitions of those Petitioners, who had claimed to have suffered mental agony of living under the shadow of death for a long
long period.
In all these writ petitions the arguments advanced were two-fold. One was that there was long delay in the disposal of the mercy petitions
preferred by them to the Governor of Tamil Nadu and the President of India and the second was that though they had addressed their mercy
petitions to the President of India, the Governor had chosen to consider them and forward the same to the President with his opinion, thereby
preventing as independent consideration by the President, on the inherent merits of their plea for mercy. In W.P. No. 2320 of 1987 if was further
argued, that the mercy petition had not yet been disposed of by the President of India and that alone will be sufficient to hold in favour of the
Petitioner therein.
W.P. Nos. 7825, 7874 and 7875 of 1988: These three writ petitions relate to Nataraya Gounder and Nattudurai alias Natarayan, who were
accused in S.C. No. 10 of 1986 on the file of the Principal Sessions Judge, Erode and hence facts which are the same can now be briefly stated.
Initially in W.P. No. 7825 of 1988 Subramani alias Subramanian, an accused in S.C. No. 5 of 1983 on the file of the Court of Session, Periyar
Division of Erode, was also shown as a condemned prisoner, but as far as his case his concerned, we have disposed of, by our order dated 15-
12-1989, while the consideration, of the cases of Nataraya Gounder and Nattudurai alias Natarayan, was kept in abeyance. Nattudurai alias
Natarayan, A-2 in S.C. No. 10 of 1986 in the son of Nataraya Gounder shown as A-1 in the same case. W.P. No. 7825 of 1988 was filed by
one K.M. Subramaniam, a practising Advocate of this Court and a staunch member in Kongu Vellala Community Association at Madras on behalf
of the prisoners, who are also stated to belong to the same community. W.P. No. 7874 of 1988 and W.P. No. 7875 of 1988 have been filed on
behalf of the same prisoners by the Secretary, Legal Aid Centre, High Court, Madras. There were five others accused of whom Achi Ammal (A-
3), the wife of the first accused Nataraya Gounder and mother of Nattuduarai alias Natarayan was sentenced to undergo life imprisonment.
The occurrence had taken place on the midnight of 26th May, 1985 and the deceased are four in number. Palaniswami Gounder, one of the
deceased, his wife and one Challappa Gounder, who were in the field shed, heard some explosion which prompted them to run towards the house
of one of the other deceased Vathiyar Palaniswami. They found the latter''s house burning. They also noticed all the accused standing in the front of
the burning house. A-1 was armed with a koduval, while A-2 wielded a kuthecti. When Vathiyar Palaniswami Gounder came out of the burning
house followed by his father-in-law Thriumalaiswami Gounder, his wife Selvalakshmi and children Jayaprakash and selvadurai, the Petitioners
Nataraya Gounder and Nattudurai alias Natarayan attacked them, resulting in the death of Vathiyar Palaniswami, Thirumalaiswami Gounder,
Selvalakhmi and Palaniswami Gounder, who went to their rescue. The learned Sessions Judge, after the trial found the Petitioners guilty as charged
and awarded the extreme penalty of law by his judgment dated 23-7-1986. Apart from the appeals preferred by the Petitioners themselves on a
reference made u/s 366 , Code of Criminal Procedure to this Court, their case was taken up as referred trial No. 12 of 1986. The referred trial
was disposed of along with their appeals and by a judgment dated 8-4-1987, the sentence of death imposed on each of the Petitioners were
confirmed by this Court. The Petitioners filed SLP (Criminal) 1776 of 1987 before the Supreme Court of India, challenging their conviction and
sentence, but the same was dismissed on 25-1-1988. A common mercy petition addressed to the President of India in duplicate dated 15-3-1988
was forwarded by the prison authorities to the State Government. The State Government received them on 21st March, 1988. The case file was
put up before the Governor of Tamil Nadu, who rejected the plea for mercy on 15-4-1988. On 22-4-1988 along with a covering letter, the State
Government forwarded to the President of India the petition for mercy, stating that the State Government had rejected the plea for clemency and
further recommended that the mercy petition may be rejected. The letter was addressed to the Secretary, Ministry of Home Affairs, Government
of India, by the Special Commissioner and Secretary to the Government of Tamil Nadu, Home Department, Madras. The President of India
rejected the mercy petition on 17-6-1988. W.P. Nos. 7874 and 7875 of 1988 were admitted on 14-7-1988 by this Court after the President had
rejected the ''mercy plea''. W.P. No. 7825 of 1988 was also admitted on the same date. There was also a stay of execution of the death sentence
imposed on both the prisoners. In the grounds taken in the affidavits filed in support of the writ petitions the Petitioners have stated that the
President of India had kept the mercy petition pending for four years and had ultimately dismissed it without assigning any reason and considering
the grounds urged therein, which was violative of the law laid down by the apex Court in Sher Singh''s case. Further the President of India had not
independently applied his mind on the mercy petition, but was weighed by the note of rejection of the Governor of Tamil Nadu appended to the
petition. The procedure adopted was violative of Article 21 of the Constitution of India. Further the appeal preferred by the prisoners before the
Supreme Court was pending and the mercy petition had yet to be disposed of by the Governor of Tamil Nadu.
In a common counter affidavit filed by N.M. Durai Singh, Joint Secretary to Government, Home Department, Government of Tamil Nadu, it has
been stated that the rejection of the mercy petition by the President of India was communicated to the prisoners of 7-7-1988. Therefore, the
contention that the President of India had kept the mercy petition pending for more than four years and hence the principles laid down by the
Supreme Court in Sher Singh''s case would be attracted, was incorrect and untenable. The averment that the procedure adopted in the disposal of
the mercy petition was in violation of Article 21 of the Constitution was untenable. It was also incorrect to state that the appeal preferred by the
Petitioner before the Supreme Court was pending and their mercy petition preferred to the Government of Tamil Nadu was also yet to be
disposed of. A perusal of the case file shows that the Government of Tamil Nadu had received the communication of rejection of the mercy
petition of the Petitioners by the President of India, on 24th June, 1988.
W.P. No. 2320 of 1987: The Petitioner Guruswami was tried, for having murdered his paternal uncle Vellaiswamy alias Velu Velar and his wife
Periyanayagam by cutting them with an aruval at about 2-10 P.M. on 24-1-1980 at Venkatachalapuram village, in S.C. No. 106 of 1980 on the
file of the Sessions Judge, Ramnad. He was found guilty as charged and sentenced to death by the judgment dated 5th February, 1981. In R.T.
No. 2 of 1981 his conviction and sentence were confirmed on 2.7.1981 by this Court. The affidavit filed by K. Chandran, the brother-in-law of
the prisoner shows, that mercy petition preferred by the prisoner''s wife was rejected by the Governor Tamil Nadu on 17-7-1982 and the
subsequent mercy petition to the President of India was also rejected on 24-3-1983. The Petitioner, who appears to have been not willing to file
any appeal to the Supreme Court of India, but was prepared to submit a mercy petition, as is evident from the counter affidavit filed by T.V.
Venkataraman, Secretary, Home Department, Tamil Nadu, However, chose to send a petition dated 12-4-1983 to the Chief Justice of India
pleading that his petition may be treated as a writ petition, challenging his sentence of death and further pleading for a stay of execution. The
Supreme Court of India, however, dismissed the said petition for special leave to appeal on 26-8-1983 in SLP Crl. No. 976 of 1983. Thereafter
the wife of the Petitioner is stated to have sent another mercy petition dated 19-9-1983 to the President of India, which has not yet been disposed
of. On 8-10-1983 another mercy petition was forwarded to the President of India by the wife of the Petitioner with copies thereof marked to the
State Government and Superintendent of Central Prison at Madurai. On 12-10-1983 the Government of Tamil Nadu issued a letter to the counsel
for the Petitioner, stating their inability to interfere in the matter, since the Petitioner had exhausted all the legal remedies that were available to him.
A further averment has been made in the affidavit of K. Chandran, that on 21-9-1983 he and the wife of the Petitioner found the Petitioner
mentally disturbed, talking incoherently and not being able even to recognise his family members. A specific averment has been made in the writ
petitions that the fixing of repeated dates for execution and repeated deferment of the date of execution, had caused grave mental anguish and
agony to the prisoner much beyond what could have been intended by the death sentence imposed on him. Two grounds have been placed before
us in an attempt to have this writ petition allowed. One is that there has been an inordinate delay in the execution of the death sentence and
secondly the subsequent mercy petitions have not been disposed of by the President of India after the disposal of the earliest mercy petition and
such non-disposal for a pretty long time, would be sufficient to substitute life sentence instead of the sentence of death, hanging over for several
years.
In the counter affidavit filed by the State Government it has been stated, that the petition for mercy preferred by the wife of the prisoner and the
public of the village were rejected by the President of India and the Governor of Tamil Nadu. The orders were also communicated to the prisoner
through the Superintendent of Central Prison, Madurai. The averment that the prisoner was mentally disturbed was denied and the opinion of Dr.
A. Vankaba Rao, Psychiatric Physician and Director of Institute of Psychiatry, Government Rajaji Hospital, Madurai, stating that on his
examination of the prisoner the latter did not appear to manifest any sign and symptom of illness fill ling under the category ""Insanity"" was referred
to. There was no unaccounted or unjustifiable delay in carrying out the execution of the death sentence.
Having narrated the facts in all these writ petitions, our attention will have to be focussed now, on the feasibility of issue of a direction not to
carry out the sentence of death and the possibility of altering it into one of imprisonment for life. In the earlier batch of cases Haja Mohideen etc,
etc. v. Government of India 1989 L.W. Cri. 546 taking note of the Tamil Nadu Prison Rules in conjunction with the observations of the Supreme
Court in Sher Singh and Others Vs. State of Punjab, suggesting a self-imposed rule to dispose of mercy petitions within three months, we held, that
anxious care on the part of the executive, to perform its duty in disposing of the mercy petitions as early as practicable, without avoidable delay
was implied. We had also stated, that as per the law of the land, the only delay which would be material for consideration, will be the delay in the
disposal of the mercy petitions or the delay occurring at the instance of the executive. Lack of explanation for the undue delay would strike at the
very root of foundation necessitating a verdict in favour of the prisoner. In the earlier petition there was not even an attempt to explain the long
delay and we took the view, on the totality of the circumstances, that death sentence should not be carried out on each one of these prisoners and
altering their sentences into one of imprisonment for life was needed.
In the present group of writ petitions, We are afraid that the Petitioners cannot succeed on the ground of delay in consideration of their
respective mercy petitions. In W.P. Nos. 7825 of 1988, 7874 of 1988 and 7875 of 1988, the Petitioners Nataraya Gounder and Nattudurai alias
Natarayan, had forwarded their mercy petitions through the prison authorities, to the President of India on 15-3-1988. The Governor of Tamil
Nadu had rejected their plea on 15-4-1988 and the President of India did not accede to their plea for mercy, by his order dated 17-6-1988. The
mercy petitions had been disposed of by both the constitutional authorities in or about three months.
Similarly in the case of the prisoner in W.P. No. 2320 of 1987 the first mercy petition dated 19-8-1981 had been rejected by Governor of
Tamil Nadu on 29-12-1981 as seen from the file and not on 17-7-1982 as alleged. The State Government forwarded the mercy petition to the
President only on 19-3-1982 and the same was rejected by the President on 24-3-1983. We are unable to hold that the executive had not player
their role consciously, though quicker action could have been taken, much earlier. The State Government should have also forwarded the mercy
petition to the President with greater promptitude. However, we are satisfied that there has been no unreasonable time lag and logically no ground
has been made out to intervene in favour of the prisoner, on the ground of mental agony to stop execution of the sentence of death. We have
carefully taken not of the judgments of the apex Court culminating in Triveniben v. State of Gujarat AIR 1989 S.C. 1355 and Madhu Metha v.
Union of India 1989 S.C.C. (Cri) 705, while arriving at our conclusion is these writ petitions.
In respect of Nataraya Gounder and Nattudurai alias Natarayan, we are bound to consider the further submission that independent
consideration of the plea for mercy by the President of India, had been made an empty formality by the letter dated 22-4-1988 of the State
Government, which had recommended negativing the mercy plea, while highlighting the rejection of a similar plea by the Governor of Tamil Nadu,
to whom no petition for mercy was addressed. The Tamil Nadu Prison Rules, 1983, and more specifically Rules 915 and 916 contemplate
forthwith despatch to the Commissioner and Secretary to Government, Home Department, by the Superintendent of the Prison, the petitions
submitted by the convict for mercy addressed to the Governor of Tamil Nadu and the President of India. Article 72 of the Constitution refers to
the power of the President, while Article 161 of the Constitution takes in its fold the power vested in the Governor of the State. It is obvious that
the prisoners have a dual right in the case of sentences of death and the power is vested in the President as well as the Governor, to commute the
sentence. This scheme has been explained in the Debates of the Constituent Assembly. The debates disclose, that is an offence was committed in a
particular locality, the concerned Home Minister would advice the Governor on a mercy petition from an offender sentenced to death, for he
would be in a better position to tender advice, having regard to his intimate knowledge of the circumstance of the case and the situation prevailing
in that area. Even if the Governor rejected the mercy petition, it was open to the offender to approach the President and try his luck. In the event of
the Governor holding in favour of the prisoner, the need for consideration of the mercy plea of the prisoner, by the President of India will not at all
arise. Though an argument has been advanced, that plea for mercy was not made to the Governor of Tamil Nadu, it is evident from the affidavit
filed in support of the prayer of prisoners in W.P. Nos. 7874 and 7875 of 1988 that their mercy petitions preferred to the Governor of Tamil
Nadu was pending as well as their appeal to the apex Court had not yet been disposed of. It is thus apparent that the prisoners were desirous of
exhausting their dual right and that was the reason why the petition was in duplicate addressed to the President of India while it was forwarded to
the State of Tamil Nadu. We therefore, find no infirmity whatsoever in the Governor of the State having considered the mercy petition and rejected
it on 15-4-1988. It may be that the petition for mercy addressed to the President of India could have been forwarded by the State Government
simultaneously to the President of India, but on facts, we do not find anything unreasonable or suspicious in the petitions for mercy having been
forwarded to the President of India, after its disposal by the Governor of the State. The entire file has been placed before us and it is apparent that
in cases of mercy petitions of condemned prisoners, if the sentence of death was commuted as life imprisonment by the Governor, only information
will be forwarded to the Government of India, Superintendent of Central Prison and the prisoner for information, while if the petition for mercy was
rejected by the Governor, it will be forwarded to the Government of India for orders of the President, with the note of the Governor. The
Governor had rejected the petition for mercy after taking note of the entire circumstances placed before him. It is true that along with mercy
petition, a letter dated 22-4-1988 had been forwarded to the Secretary, Ministry of Home Affairs, New Delhi, by the Home Secretary of the
State of Tamil Nadu, wherein while detailing the rejection of the mercy petition by the Governor, a recommendation for rejection of the mercy
petition by the President had also been made. We are unable to comprehend or persuade ourselves to hold that merely because of this letter the
President of India would have been influenced and would not have exercised his power independently without being influenced in any matter by the
recommendation afore stated. The President of India who holds an exalted office and who appoints Governors in States, will not be unconscious
of his constitutional responsibility under Article 72 and it is hard to believe, that the President mechanically, without any independent consideration,
would have dismissed the mercy petitions merely because such a recommendation had been made. As the Debates of the Constituent Assembly
disclosed, if the Home Minister could have advised the Governor, on a mercy petition, in view of his being in a better position to tender advice,
having regard to his intimate knowledge of the circumstances of the case and the situation prevailing in that area, such unfurling of material facts
together with the view of the Governor do not appear either to black or cast a dent in the independent consideration of the mercy petition by the
President. On facts, there in not even a note put by the Governor of Tamil Nadu to the President of India. We are unable to hold that the President
would have been clouded by the recommendation of the State Government while arriving at his own conclusion on the totality of the material
placed before him. This power of great magnitude and dimension vested in the President is certainly bound to dictate to him the prudential caution,
which call for in its exercise, uninfluenced by any circumstance except his own conscious conclusion on the whole material placed for
consideration. The power so vested in the President proclaim the confidence of the Nation, that will not be abused. It will certainly be conducive
that such recommendations are not made, but on facts we are not persuaded, to hold in favour of the prisoners on this ground, as well. W.P. Nos.
7825,7874 and 7875 are, therefore, dismissed.
As far as W.P. No. 2320 of 1987 is concerned the mercy petition of the prisoner had been considered by both the constitutional authorities
and it had been dismissed by the Governor of Tamil Nadu on 29.12.1981 and by the President of India on 24.3.1983. It is only thereafter that the
Petitioner who was not willing to move the apex Court, had chosen to address the Chief Justice of India to treat his petition as a writ, to set aside
his conviction and sentence imposed by the trial Court and confirmed by this Court. The moving of the Supreme Court obviously after a substantial
delay of nearly two years was only a time prolonging device and after the Supreme Court had dismissed the belated special leave petition, the
Petitioner''s wife had thought it fit to send further mercy petitions dated 19-9-1983 and 8-10-1983 to the President of India. We do not think that
successive petitions for mercy will lend anywhere especially when it has not been argued before us that some new or unexpected circumstances
had arisen, which could not have been considered in the earlier mercy petition and these fresh circumstances may tend to tilt the balance in favour
of the prisoner. There will be no limit or finality to mercy petitions if this course of successive mercy petitions were allowed to be filed needing
consideration every time by the President of India and the Governor of the State. The successive petitions for mercy, on facts, appear to have been
filed somehow or other to keep the legal process pending, rather than on the basis of any bona fides. We are satisfied that there will be no duty
cast on the Governor of the State and the President of the country to consider successive mercy petitions without limit. However, we find from the
Government file relating to Guruswamy that even on 25-11-1983, the State Government had been informed that in respect of the latter mercy
petitions, dated 19-9-1983 and 8-10-1983, it had been decided that the order communicated by the letter dated 24-3-1983, that the President
declines to interfere on behalf of Guruswamy should stand. We also hold that there has been no unaccounted or unjustifiable delay in carrying out
the execution of death sentence. We are unable to accede to the plea made on behalf of the prisoner. Hence, W.P. No. 2320 of 1987 is also
dismissed.
In the result, all the writ petitions are dismissed.