V.R.KRISHNA IYER, J.

(1) THE petitioners held to be murderers by the court and sentenced to death, having regard to the bloodcurdling ruthlessness of the guilt, crossed over from the jurisdiction of courts to the clemency zone of the President under Article 72. This last-chance-to-live appeal for mercy by men who mercilessly killed, allegedly driven by the humanist urge for catalysing social justice through terrorist technology, found no compassionate response. The refusal of the President to commute the death sentence rushed the petitioners back to the High court to save their life thrugh the courts writ. Rejection by that court has compelled them to seek judicial sanctuary in the Supreme court, as the final scene of the Fifth Act of the tragic drama is drawing near.

(2) SHRI Garg has grounded his arguments on two socio-legal basics. A politically motivated offence committed by the two frustrated men who were disenchanted by the die-hard injustice of massive suffering and suppression, to shock and shake the custodians of the status quo ante, stands on a separate footing from the common run of crimes and the root humanity of their ruthless inhumanity, though pertinent, was blindly brushed aside by the President. Thereby he excluded a crucially conscientious consideration from an essentially compassionate jurisdiction which rendered the rejection of commutation illegal and unconscionable. Assuming a measure of validity in this socio-political submission, can the court even the Supreme court rush in where the Constitution has made the President the repository of a benignant life-or-death power, non-justiciable without breaching the dykes of Article 72 (or Article 161, if it be the governor) and non-accountable except to the good conscience of the top Executive ? Justice is not always channelled through a judge and what is out of bounds for and not enforceable through regular courts does not, ipso jure, become arbitrary or unjust. In our constitutional order and system of jurisprudence the judicature is a great instrumentality but not a brooding omnipotence in the sky. Shri Garg, undaunted by this inhibitive doctrine, insisted that the dynamics of power in a democratic polity must be governed by. the rule of law, a basic feature of the Constitution. True, where law ends, tyranny begins. Counsels contention is that the Presidents mercy power is subject to this paramount obligation to reckon all relevant, and reject all irrelevant, factors in reaching his verdict of death or life. Here, urges Shri Garg, two vital digits have been overlooked that political offenders from Bhagat Singh to the Spanish Five (whose execution recently quaked world public opinion) were not common criminals and, secondly, that there has been obliviousness to the growing great trend against death penalty as a legal barbarity now gleaned in pronouncements of this court and the penal reform currently before Parliament.

(3) THE force of the twin submissions, together with a third noticed in Ediga Anamma viz., the sacred, yet secular, commandment thou shall not kill, need not be underrated to undo their argumentative potency in this forum. What is powerful as pre-legislative campaign or post-legislative reform, what is high ethics and noble humanism on Sunday pulpit and political platform and what is sure to dawn tomorrow but is struggling to be born today all these are on the law-moulding matrix but not law now and here. We are not prophets of the Advent but pragmatic technicians using the tools and the know-how handed down to courts by the legislature. Judges may have a creative role and do activist engineering but obedient to the text of the Constitution. Such a perspective informs our appraisal of both the contentions enumerated by him as nine, but condensed by us into two.

(4) PATRIOTS and others seeking to accomplish political seals or to attack the political order may commit acts which under municipal laws may be