VERY IMPORTANT POINT
Rule enunciated in some judgments that long delay may be one of the grounds for commutation of the sentence of death into life imprisonment cannot be invoked in cases where a person is convicted for offence under TADA or similar statutes. Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes.
IMPORTANT POINT
While examining challenge to the decision taken by the President under Article 72 or the Governor under Article 161 of the Constitution, as the case may be, the Courts power of judicial review of such decision is very limited. The Court can neither sit in appeal nor exercise the power of review, but can interfere if it is found that the decision has been taken without application of mind to the relevant factors or the same is founded on the extraneous or irrelevant considerations or is vitiated due to malafides or patent arbitrariness.

Headnote:Constitution of India,1950- Articles 72 ,161- Indian Penal Code,1860-Sections 419, 420, 468 and 471 - Passports Act, 1967 - Section 12 - TADA-Sections 2, 3 and 4 -Prosecution of petitioner for carrying out a bomb blast outside Delhi Youth Congress office that killed nine and injured seventeen including the then Youth Congress President M.S. Bitta- The designated Court, Delhi found petitioner guilty and sentenced him to death-Appeal-Dismissed-Mercy petition-Dismissed by President-Writ Petition-Delay of 8 years in disposal of mercy petition filed under Article 72-Whether should be treated as sufficient for commutation of sentence of death into life imprisonment, more so, because of prolonged detention, the petitioner had become mentally sick-Held present case was not a fit one for exercise of the power of judicial review for quashing the decision taken by President not to commute the sentence of death imposed on the Petitioner- While imposing punishment for murder and similar type of offences, Court is not only entitled, but is duty bound to take into consideration the nature of the crime, the motive for commission of the crime, the magnitude of the crime and its impact on the society, the nature of weapon used for commission of the crime, etc.. If the murder is committed in an extremely brutal or dastardly manner, which gives rise to intense and extreme indignation in the community, the Court may be fully justified in awarding the death penalty-All these factors have to be taken into consideration by the President or the Governor, as the case may be, while deciding a petition filed under Article 72 or 161 of the Constitution and the exercise of power by the President or the Governor, as the case may be, not to entertain the prayer for mercy in such cases cannot be characterized as arbitrary or unreasonable and the Court cannot exercise power of judicial review only on the ground of undue Delay- Writ petitions dismissed (Paras 39 to 48)
        Constitution of India,1950- Articles 72 ,161- Indian Penal Code,1860-Sections 419, 420, 468 and 471 - Passports Act, 1967 - Section 12 - TADA-Sections 2, 3 and 4 -Prosecution of petitioner for carrying out a bomb blast outside Delhi Youth Congress office that killed nine and injured seventeen including the then Youth Congress President M.S. Bitta- The designated Court, Delhi found petitioner guilty and sentenced him to death-Appeal-Dismissed-Mercy petition-Dismissed by President-Writ Petition-Delay of 8 years in disposal of mercy petition filed under Article 72-Writ petition- Rule enunciated in some judgments that long delay may be one of the grounds for commutation of the sentence of death into life imprisonment cannot be invoked in cases where a person is convicted for offence under TADA or similar statutes- Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes- It is true that there was considerable delay in disposal of the petition filed by the petitioner but, keeping in view the peculiar facts of the case, held that there was no valid ground to interfere with the ultimate decision taken by President not to commute the sentence of death awarded to the petitioner into life imprisonment-Again petitioners mental health had not deteriorated to such an extent that the sentence awarded to him could not be executed-Writ petitions dismissed (Paras 39 to 48)
        Constitution of India,1950- Articles 72 ,161- Power vested in President and Governor to grant pardon-Scope and ambit of-Power vested in the President under Article 72 and Governor under Article 161 of the Constitution is manifestation of prerogative of the State- It is neither a matter of grace nor a matter of privilege, but is an important constitutional responsibility to be discharged by highest executive keeping in view the considerations of larger public interest and welfare of the people-While exercising power under Article 72, President is required to act on the aid and advice of the Council of Ministers- In tendering its advice to President, the Central Government is duty bound to objectively place the case of the convict with a clear indication about the nature and magnitude of the crime committed by him, its impact on the society and all incriminating and extenuating circumstances- The same is true about State Government, which is required to give advice to Governor to enable him to exercise power under Article 161 of Constitution- On receipt of advice of the Government, President or the Governor, as the case may be, has to take a final decision in the Matter- Although, he/she cannot overturn the final verdict of the Court, but in appropriate case, President or the Governor, can after scanning the record of the case, form his/her independent opinion whether a case is made out for grant of pardon or reprieve- In any case, President or Governor, has to take cognizance of relevant facts and then decide whether a case is made out for exercise of power under Article 72 or 161 of the Constitution (Para 22)
       Facts of the Case :
        Issue in consideration in present writ petitions was whether Delay of 8 years in disposal of mercy petition filed under Article 72, should be treated as sufficient for commutation of sentence of death into life imprisonment, more so, because of prolonged detention, the petitioner had become mentally sick.
       Findings of the Court :
        A.The Apex Court held that present case was not a fit one for exercise of the power of judicial review for quashing the decision taken by President not to commute the sentence of death imposed on the Petitioner. While imposing punishment for murder and similar type of offences, Court is not only entitled, but is duty bound to take into consideration the nature of the crime, the motive for commission of the crime, the magnitude of the crime and its impact on the society, the nature of weapon used for commission of the crime, etc.. If the murder is committed in an extremely brutal or dastardly manner, which gives rise to intense and extreme indignation in the community, the Court may be fully justified in awarding the death penalty. All these factors have to be taken into consideration by the President or the Governor, as the case may be, while deciding a petition filed under Article 72 or 161 of the Constitution and the exercise of power by the President or the Governor, as the case may be, not to entertain the prayer for mercy in such cases cannot be characterized as arbitrary or unreasonable and the Court cannot exercise power of judicial review only on the ground of undue Delay.
        B. Rule enunciated in some judgments that long delay may be one of the grounds for commutation of the sentence of death into life imprisonment cannot be invoked in cases where a person is convicted for offence under TADA or similar statutes. Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes. It is true that there was considerable delay in disposal of the petition filed by the petitioner but, keeping in view the peculiar facts of the case, held that there was no valid ground to interfere with the ultimate decision taken by President not to commute the sentence of death awarded to the petitioner into life imprisonment. Again , petitioners mental health had not deteriorated to such an extent that the sentence awarded to him could not be executed.Writ petitions were dismissed.
       Result : Writ petitions dismissed

Judgment :-

G.S. Singhvi, J.

1. Human life is perhaps the most precious gift of the nature, which many describe as the Almighty. This is the reason why it is argued that if you cannot give life, you do not have the right to take it. Many believe that capital punishment should not be imposed irrespective of the nature and magnitude of the crime. Others think that death penalty operates as a strong deterrent against heinous crimes and there is nothing wrong in legislative prescription of the same as one of the punishments. The debate on this issue became more intense in the second part of the 20th century and those belonging to the first school of thought succeeded in convincing the governments of about 140 countries to abolish death penalty.

2. In India, death was prescribed as one of the punishments in the Indian Penal Code, 1860 (IPC) and the same was retained after independence. However, keeping in view the old adage that man should be merciful to all living creatures, the framers of the Constitution enacted Articles 72 and 161 under which the President or the Governor, as the case may be, can grant pardons, reprieves, respites or remission of punishment or suspend, remit or commute the sentence of any person convicted of any offence and as will be seen hereinafter, the President has exercised power under Article 72 in large number of cases for commutation of death sentence into life imprisonment except when the accused was found guilty of committing gruesome and/or socially abhorrent crime.

3. The campaign for the abolition of capital punishment led to the introduction of a Bill in the Lok Sabha in 1956 but the same was rejected on 23.11.1956. After two years, a similar resolution was introduced in the Rajya Sabha but, after considerable debate, the same was withdrawn.

Another attempt was made in this regard in 1961 but the resolution moved in the Rajya Sabha was rejected in 1962. Notwithstanding these reversals, the votaries of ‘no capital punishment’ persisted with their demand. The Law Commission of India examined the issue from various angles and recommended that death penalty should be retained in the statute book. This is evinced from the 35th Report of the Law Commission, the relevant portions of which are extracted below:

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

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

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

4. The constitutionality of capital punishment was examined by the Constitution Bench in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20. The facts of that case were that appellant Jagmohan Singh was convicted for the murder of Chhote Singh and was sentenced to death by the trial Court. The High Court confirmed the death sentence. Before this Court, the counsel for the appellant relied upon the judgment of the U.S. Supreme Court in Furman v. State of Georgia, 408 US 238 and argued that death penalty was per se unconstitutional. This Court distinguished that judgment by observing that even though

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2013 Supreme(SC) 360

Cases Referred (32)