NATIONAL LAW UNIVERSITY ORISSA

SUBJECT: CODE OF CRIMINAL PROCEDURE

CLEMENCY POWERS OF THE PRESIDENT

SUBMITTED TO: PROF. (DR.) SRIKRISHNA DEVA RAO

(VICE-CHANCELLOR, NLUO)

PROF. Ramakrishna Das

SUBMITTED BY: Atif Ahmed (15/BA/012)

 CLEMENCY POWERS OF THE PRESIDENT

TABLE OF CONTENTS

Table of Contents.......................................................................................................................2
Introduction................................................................................................................................3
Shatrugan Chauhan v.Union of India.........................................................................................5
Facts of the Case.................................................................................................................... 5
Analysis Of Judgement.......................................................................................................... 5

Union of India v. Sriharan @ Murugan and Ors......................................................................12

Facts of the Case.................................................................................................................. 12

Issue Before the Supreme Court...........................................................................................13

Contentions on behalf of the Petitioner................................................................................14
Contentions on behalf of the Respondents...........................................................................15
Decision of the Court........................................................................................................... 16
Analysis of the Judgment by the Court................................................................................ 17
Conclusion............................................................................................................................... 18

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INTRODUCTION

The sovereign’s right to pardon an offender has always gone together with the concept of
sovereignty and hand in hand with the sovereign’s power to punish. So far as the power to
punish is concerned, as the sovereign functions of the State became divided between three
equal but separate constituents, the Executive, the Legislature and the Judiciary, the power to
judge an offence and to award punishment passed on to the Judiciary. The sovereign as
personified by the ruler no longer personally punishes an offender because this is now the
function of the Judiciary. However, after a judicial order was passed, the power to pardon,
remit or commute the sentence of the convict continued to be enjoyed by the sovereign
through the Executive.

Under Article 72 of the Constitution of India, the President has the power to grant pardon,
reprieve, respite or remission of punishment and to suspend, remit or commute the sentence
of any person convicted of an offence in all cases of trial by court martial, where punishment
is for an offence against a law to which the executive power of the Union extends or where
the sentence awarded is of death. Under Article 161 of the Constitution, the Governor of a
State enjoys similar powers in all matters pertaining to a law to which the executive power of
the State extends. Because the President and the Governor are required to act according to the
aid and advice of the Council of Ministers, every decision under Articles 72 and 161 would
naturally be coloured by political considerations. Under sections 432 and 435 Cr.P.C there are
similar powers of pardon, remission, commutation, etc., available to the Centre and State
Governments respectively.

The pardoning power is founded on considerations of the public good, and is to be exercised
on the ground that the public welfare, which is the legitimate object of all punishment, will be
as well promoted by a suspension as by an execution of the sentence. It may also be used to
the end that justice be done by correcting injustice, as where after-discovered facts convince
the official or board invested with the power that there was no guilt or that other mistakes
were made in the operation or enforcement of the criminal law. Executive clemency also
exists to afford relief from undue harshness in the operation or enforcement of criminal law.
The President’s pardoning power, deals with providing justice which is essentially the
Judiciary’s function.

The doctrine of separation of powers is one of the most eminent doctrines in the Constitution
of India. The reasons for the interference of the executive in the functions of the judiciary
have to be explored, understood and appreciated keeping in mind the separation of powers.
The Executive gives an absolute power of pardon to the Executive. There is every likelihood
of abuse of such a power. Therefore, an analysis of case laws with regard to presidential
pardon is the main objective of the project.

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The power of pardon is basically there for two broad reasons:

(1) Acts of leniency by pardon are administered by the executive branch of the government in
the interests of society and the discipline, education, and reformation of the person convicted.
(2) A pardon is granted on the theory that the convict has seen the error of his ways, that
society will gain nothing by his further confinement and that he will conduct himself in the
future as an upright, law-abiding citizen.

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SHATRUGAN CHAUHAN V.UNION OF INDIA

The case set new horizons on the new judicial policy guidelines to settle the ambiguity of
Articles 72 and 161 of the Constitution of India. It also examines the power of the President
or Governor — to grant or refuse to grant mercy to the convicts of death sentence. The case is
a settles the conflict between “constitutional duty” and “constitutional privilege”.

FACTS OF THE CASE

The petitions are by the convicts or their family members and public spirited bodies like
PUDR for public cause standing based on the rejection of mercy petition by the President
(Article 72) and the Governor (Article 161). The petitioners’ prayer relates to the issuance of
a writ of declaration declaring that execution of sentence of death pursuant to the rejection of
the mercy petitions by the President of India is unconstitutional and to set aside the death
sentence imposed upon them by commuting the same to imprisonment for life. The objective
of PUDR in this case was to seek directions in respect of procedure to be followed while
considering the mercy petitions, and in general for protection of rights of the death row
convicts. The petitions, PIL and non-PIL, have sought relief under Article 32 of the
Constitution of India against alleged infringement of certain fundamental rights on account of
failure on the part of the executive to dispose of the mercy petitions filed under Article 72/161
of the Constitution within a reasonable time.

ANALYSIS OF JUDGEMENT
The violation of fundamental right, in the given case, has arisen out of an executive
action/inaction, and, therefore, Article 32 can be utilized to enforce the fundamental rights of
the convicts. The argument of the petitioners that exercise of th e constitutional power vested
in the executive specified under Article 72/161 has violated the fundamental rights of the
1
petitioners has been accepted the Supreme Court that the constitutional power under Article
72/161 has not to be exercised as a mere “constitutional privilege” by the majestic head of the
State, but as a directive of “constitutional duty/obligation” of the majestic head of the State.
The power to pardon is based on the advice tendered by the Executive to the
President/Governor, which subject to the provisions of Article 74(1)/163 of the Constitution,
the act shall in accordance with such advice. Delay in the rendition of advice by the Executive
to the majestic head of the State culminates in delay in disposal of mercy petition(s) under
Article 72/161 and this executive delay is inasmuch as an ill as the ill of delay in disposal of
cases or pendency of the cases or clogging of the cases in the courts

Judicial Review and Mercy Petitions

The limited judicial review is applicable to power under Article 72/161. The Constitutional
duty/obligation/responsibility exercised is not open to judicial review, it can be only be
reviewed under the following circumstances:

1
R.D. Shetty v. International Airport Authority of India, (1979) 3 scc 489; T.V. Vatheeswaran v. State of Tamil
Nadu, (1983) 2 SCC 68; Sher Singh v. State of Punjab, (1983) 2 SCC 344; Triveniben v. State of Gujarat, (1988)
4 SCC 574.

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a. If the executive head had been found to have exercised the power himself without being
advised by the government;
b. If the executive head transgressed his jurisdiction in exercising the said power;
c. If the executive head had passed the order without applying his mind;
d. The order of the executive head was mala fide;
e. The order of the executive head was passed on some extraneous considerations;
f. The executive head should not exercise the power malafidely;
g. There should not be any political considerations behind the exercise of the pardoning
2
power.

A supervening cause takes place or occurs as something additional or extraneous or

unforeseen and essentially is an event that operates independently of anything else and
becomes the cause for legal remedy. If the supervening cause/event/circumstance is strong
enough it relieves the convict-victim (death row convicts) from capital sentence. Supervening
cause/ event/circumstance must be strong enough to attract the judicial attention to
commuting death sentence into life imprisonment. The under supervening circumstances for
commutation of death sentence to imprisonment for life are:

(i) Delay
Article 72/161 do not contemplate any time limit within which the mercy petition is to be
disposed off by the President of India or the Governor of the State. The procedure starts with
the Supreme Court finally deciding on the final appeal of the convicts for the death sentence,
the death row convicts approaches the Governor under Article 161 of the Constitution with a
mercy petitions. During the pendency of the mercy petition the execution of the death
sentence is stayed. Once the mercy petition is rejected by the Governor, the convict prefers
mercy petition to the President under Article 72 of the Constitution, decision is taken after a
long internal process with Home ministry and President’s office. The decision of the President
under Article 72 is communicated to the State Government/Union Territory concerned and to
the prisoner through the State Government/Union Territory.

This process involves undue, unreasonable and prolonged delay in disposal of mercy petition
and the execution of death penalty in the face of such an inordinate delay that infringes the
fundamental right to life under Article 21 of the Constitution. This, thus, invites the exercise
of jurisdiction of the Supreme Court under Article 32.
The two questions before the Supreme Court for consideration relating to thirteen death row
convicts were:

(i) Whether the delay in execution itself will be a ground for commutation of
sentence,
(ii) Whether two year delay in execution is will automatically entitle the condemned
prisoner for commutation of sentence.
2
Narayan Dutt v. State of Punjab, (2011) 4 SCC 353; Maru Ram v. Union of India, (1981) 1 SCC 107; Epuru
Sudhakar v. Government of A. P., (2006) 8 SCC 161.

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The Supreme Court in its observation noted that till 1980 the mercy petitions were decided in
minimum of 15 days and in maximum of 10-11 months; from 1980-1988, the time taken in
disposal of mercy petitions was in an average span of 4 years ,this is time when the delay in
3
deciding the mercy petitions started. The Court in Sher Singh v. State of Punjab ,gave
directions to the Union Government and the all the State Governments for speedy as well as
expeditious disposal of petitions under Articles 72 and 161or under Sections 432 and 433 of
Criminal Procedure Code and issued under mentioned directions:

“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.”

The Court’s decision did not make much effect on the disposal of of mercy petitions from the
period between the periods of 1989 to 1997, the average time taken for deciding the mercy
petitions was 5 months. After 1998, it has been sorry state of affairs, deciding the mercy
petitions under Article 72/161 has again at the delay of maximum of 12 years, and due to the
delay, the death row convict-victims have been tortured due to delay in disposal of mercy
petition and delay in execution of death sentence. The Supreme Court expressed that undue,
inordinate and unreasonable delay in execution of death sentence is in violation of article 21
and is a ground for commutation of death sentence. While commuting the death sentence, the
Court didn’t make a distinction between the nature of IPC and non-IPC offences. And the
Court did not prescribe any time limit in the disposal of mercy petitions under Article 72/161.

(ii) Insanity/Mental Illness/Schizophrenia

Insanity/mental illness/schizophrenia is another significant supervening circumstance that is
based on the ground of the unconscionable long delays in deciding mercy petition.
Unconscionable long delay in deciding mercy petition is the result of indecisiveness on
extraneous as well as political considerations, which consequentially causes the onset of
chronic psychotic illness. In other words, insanity/mental illness/schizophrenia is the effect of
unexplained/undue/inordinate delay as cause. Therefore, this supervening event is an in depth
examination of causal relationship of effect and cause. And as such, the execution of death
sentence will be inhuman and against the principles of human rights. The Court has taken a
humane approach in deciding the cases of two convict prisoners, that the supervening event
undoubtedly violates the fundamental right to life under Article 21 of the Constitution.

And as such, while re-visiting the national and international legal treatises, the Court has
unequivocally observed that such legal documents prohibit the execution of death sentence on

3
(1983) 2 SCC 344

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an insane/mentally deranged person(s). The Court, therefore, urged that “insanity/mental
illness/schizophrenia is a crucial supervening circumstance, which should be considered by
this Court in deciding whether in the facts and circumstances of the case death sentence could
be commuted to life imprisonment.

(iii) Solitary confinement

Solitary confinement of the convict prisoners is another supervening circumstance that invites
the attention of the Court and commutation of death sentence into life imprisonment. The
Court analysed this in three questions:
 Whether the death row convicts could be kept in solitary confinement from the date of
imposition of death sentence by the sessions Court?
 Whether such solitary confinement is a form of torture and contrary to the provisions
of IPC or Criminal Procedure Code, Prisons Act and Articles 14, 19 and 21 of the
Constitution?
 Whether death row convicts are to be kept in statutory segregation and not per se in
solitary confinement?
The Court examined the issues based on well-established case law of Sunil Batra v. Delhi
5
Administration . The Court observed that death row convicts cannot be kept under solitary
confinement. Solitary confinement is a separate substantive punishment prescribed by Section
73 of the socially less sensitive Indian Penal Code of 1860. Death row convicts can be kept
under ‘statutory confinement’ under the authority of Section 30(2) of the Prisons Act read
with Section 366(2) Criminal Procedure Code.
Taking reliance on the Sunil Batra case, the Court stated that once the mercy petition is
rejected by the majestic head of the State under Article 72/161, the person is under sentence
of death, in the period of deciding of mercy petition, keeping a prisoner in solitary
confinement is contrary to the ruling the aboce case and would amount to inflicting
“additional and separate” punishment not authorized by law. It was directed to jail authorities
to implement the Batra case judgement.

(iv) Judgments Declared Per Incuriam

The expression per incuriam connotes a judicial decision wrongly decided, because the
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judge(s) were ill-informed about the applicable law, viz., stare decisis. Though per incuriam
was pleaded as one of the supervening circumstance for commutation of death sentence, but
the Apex Court opined that there was no need to give importance to the arguments relating to
per incuriam.
(v) Procedural Lapses

4 Resolution 2000/65 dated 27.04.2000 of the U. N. Commission on Human Rights: The Question of Death
Penalty; The Report of the Special Rapporteur on Extra-Judicial Summary or Arbitrary Execution, 1996; U. N.
Commission on Human Rights: Restrictions on the use of death penalty; U. N. General Assembly Resolution
adopted on 18.12.2007 in its Sixty-second session: Moratorium on the use of the death penalty; William
Blackstone, Commentary on the Laws of England; Jail Manuals of the respective Indian States.
5 (1978) 4 SCC 494
6 Rupert Cross & J. W. Harris, Precedent in English Law, 4 th ed. 1991; Louis-Philippe Pigeon, Drafting and
Interpreting Legislation, 1988.

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The ground of procedural lapses is an important supervening circumstances for the plea of
commuting death sentence. There are guidelines laid down by the Union Government certain
guidelines for deciding mercy petitions under Article 72/161. Not complying with these
guidelines affects the very spirit and soul of Article 21 which is the paramount principle on
which rights of the death row convicts are based along with the rights of the victims of crimes
or the deceased’s family as also social considerations since these elements form part of the
sentencing process as well. The procedural guidelines are as follows:

Personality of the accused (such as sex, age or mental deficiency) or circumstances of the
case (such as provocation or similar justification);

Cases in which the appellate Court expressed doubt as to the reliability of evidence but
has nevertheless decided on conviction;

Cases where it is alleged that fresh evidence is obtainable mainly with a view to see
whether fresh enquiry is justified;

Where the High Court on appeal reversed acquittal or on an appeal enhanced the
sentence; Is there any difference of opinion in the Bench of High Court Judges
necessitating reference to a larger Bench;

Consideration of evidence in fixation of responsibility in gang murder cases;

Long delays in investigation and trial etc.
These guidelines mutatis mutandi set out that the power under Article 72/161 is an
extraordinary power to be exercised as a ‘constitutional duty’ and not lightly or as a matter of
course as a mere ‘constitutional privilege’
.
The Supreme Court stated that it could find no explanation for the delay in disposal of
petitions for mercy from death row convicts at various stages. The delay in disposal of the
mercy petitions have been culled out with details as follows:

The Supreme Court has framed the following guidelines for safeguarding the interest of the
death row convicts and also for minimizing the delay in the disposal of the mercy petition(s)
by the majestic head of the State:
1. Solitary confinement: Solitary confinement or single cell confinement prior to
rejection of the mercy petition by the President is unconstitutional. Prison Manuals
provide necessary rules governing the confinement of death convicts and the rules
should not be interpreted to run counter and violate Article 21 of the Constitution.

2. Legal Aid: Legal aid is a fundamental right under Article 21 and inhere rights in a
convict till his last breath. After the rejection of the mercy petition by the President,
the convict can approach a writ Court for commutation of the death sentence on the
ground of supervening events, if available, and challenge the rejection of the mercy
petition and legal aid should be provided to the convict at all stages. The
Superintendent of jails will intimate the rejection of mercy petitions to the nearest
Legal Aid Centre apart from intimating the convicts. It is submitted that the Legal
Aid Clinics of Law Schools in the country should also take up this pious task and
involve the law students in rendering the legal aid to such convicts.

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3. Procedure in placing the mercy petition before the President: The Government of
India’s guidelines, as discussed above, for disposal of mercy petitions filed by death
convicts after disposal of their appeals by the Supreme Court must be adhered to
strictly. The concerned department should be disciplinarian in calling for the
records, as spelled out above, in one go and not in piece-meal in order to minimize
the delay in the disposal of mercy petition by the majestic head.

After getting all the detailed records, the Ministry of Home Affairs should send the
recommendations or their views to the majestic head of the State within a
reasonable and rational time. Even after sending the necessary particulars, if there is
no response from the office of the President, it is the responsibility/obligation/duty
of the Ministry of Home Affairs to send periodical reminders and to provide
required materials for early decision.

4. Commutation of rejection of Mercy Petition by the Governor: Since the convict has
a constitutional right under Article 161 to make a mercy petition to the Governor, he
is entitled to be informed in writing of the decision on that mercy petition. The
rejection of the mercy petition by the Governor should forthwith be communicated
to the convict and his family in writing or through some other mode of
communication available. It is submitted that the Legal Aid Clinics of the Law
Schools in the country can involve their law students as paralegal servers in this
perspective so that dormant clinics can be activated.

5. Communication of Rejection of the Mercy Petition by the President: Since the

death convict has a constitutional right under Article 72 of the Constitution to make
a mercy petition to the President, he is entitled to be informed in writing of the
decision on that mercy petition. The rejection of the mercy petition by the President
should forthwith be communicated to the convict and his family in writing. As
already stated above, the law students engaged in the legal aid clinics in their law
schools should be activated as paralegals.

6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy
petition by the President and the Governor. It discerns that this directive enables the
death victim to seek judicial review of the rejection of the mercy petition. It is
submitted that besides legal aid services centers operative under the legal services
authorities legislation, the law students engaged in the legal aid clinics of the law
schools can play an active role in this perspective and can be activated from their
dormant stage and that shall be an experiential learning in clinical legal education
modules.

7. Minimum 14 days notice for execution: Since the prison manuals do not contain
uniform communication procedure, it shall be necessary that a minimum period of
14 days be stipulated between the receipt of communication of the rejection of the
mercy petition and the scheduled date of execution for the reasons: (a) it shall allow

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the prisoner to prepare himself mentally for execution, to make his peace with God,
prepare his will and settle other earthly affairs; (b) it shall allow the prisoner to have
a last and final meeting with his family members; (c) it shall allow the prisoners’
family members to make arrangements to travel to the prison which may be located
at a distant place and meet the prisoner for the last time.

This time schedule is imperative because without sufficient notice of the scheduled
date of execution, the prisoners’ right to avail judicial remedies will be thwarted and
they will be prevented from having a last and final meeting with their families.
Therefore, the Superintendent of Jail/Prison have an obligation to see that the
family members of the death convicts receive the message of communication of
rejection of mercy petition in time.

8. Mental Health Evaluation: Death row prisoners lose their mental balance due to
prolonged anxiety and suffering experienced on death row. There should, therefore,
be regular mental health evaluation of all death row convicts and appropriate
medical care should be given to those in need.

9. Physical and Mental Health Reports: All prison manuals give Prison Superintendent
the discretion to stop an execution on account of the convict’s physical and mental
ill health. It is, therefore, necessary that after the mercy petition is rejected and the
execution warrant is issued, the Prison Superintendent should satisfy himself on the
basis of medical reports by Government doctors and psychiatrists that the prisoner
is in a fit physical and mental condition to be executed.

10. Furnishing documents to the convict: The death row prisoners must be provided
with the copies of the court papers, judgments, etc. within a week by the prison
authorities for making appeals, mercy petitions and accessing post-mercy judicial
remedies which are essential under Article 21 of the Constitution. Extreme poor
conditions of such victims should not be predicament or stumbling block of their
rights under Article 21.

11. Final meeting between Prisoner and his Family: In the absence of any uniform
procedure prescribed in the prison manuals of different States, it is necessary for
prison authorities to facilitate a final meeting between the condemned prisoner and
his family prior to execution that is intrinsic to humanity and justice.

12. Post Mortem reports: It must be obligatory to conduct compulsory post mortem on
death convicts after the execution.

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UNION OF INDIA V. SRIHARAN @ MURUGAN AND ORS.

The case is concerned with remission of death sentence under Section 432 of Code of
Criminal Procedure. The petition filed under this case is for quashing of letters issued by
Government of Tamil Nadu in which the State of Tamil Nadu proposes to remit the sentence
of life imprisonment and also to release the respondents who were convicted in Rajiv
Gandhi’s Assassination case.

Also, it is important to note that it was the first case in the Indian History, wherein the Union
or the Central Government has filed a writ petition under Article 32 of the Constitution.

FACTS OF THE CASE

The Government of Tamil Nadu took a decision to grant remission to Respondents 1 to 7.
Accordingly, the Government of the State sent a letter on 19.02.2014 to the Secretary to the
Government of India, Ministry of Home Affairs, stating that its intention that it proposes to
remit the sentence of life imprisonment given by this Court on V. Sriharan @ Murugan, T.
Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu (herein the respondents) and also to
release them. In that particular letter, it was further stated by the state government that the
four other persons, i.e., Jayakumar, Robert Payas, S. Nalini and P. Ravichandran, convicted in
the same assassination case would also procure the same remission of sentence.

Besides this, it was asserted in the letter by the state government that since the crime was
investigated by the Central Bureau of Investigation and as per Section 435 of the Code of
Criminal Procedure, 1973, the State Government, while exercising its power Under Section
432 of the Code, must act after consultation with the Central Government, accordingly, it
requested to indicate the views of the Union of India within three days on the proposal to
release the seven convicts mentioned above.

Consequently, this matter is before the Apex Court to decide the validity and legitimacy of
the proposal made by the State Government for release of Respondent Nos. 1 to 7, who are
facing life sentence.

ISSUE BEFORE THE SUPREME COURT

The primary question that arises for consideration at this juncture is whether in the first
scenario specified above, the Court has the power to substitute the death penalty for
imprisonment for life (meaning until end of life) and put this category beyond the application
of remission.

CONTENTIONS ON BEHALF OF THE PETITIONER

1. The Learned Attorney General appearing on behalf of the Union of India contended that
the proposal made by the State of Tamil Nadu in exercise of power of remission in the present
case is illegal and without jurisdiction on the reasons being that state government is

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not an appropriate government and the proposal made by the State is contrary to law as it
does not follow the procedure given under the Code.

2. The AG pointed out that the proviso contained in Article 73 of the constitution of India, it
can be inferred that the executive power of the central government given under Article 73(1)
(a) shall not extend in any state to the matters with resepect ot ehich the state the stte
legislature has power to make laws.

The proviso contained in Article 73 is excluded by Section 432(7) of the Code Criminal
Procedure as it is only applicable where there is no express provision to maintain the
executive power of the Union. Consequently, the proviso to Article 162 of the Constitution
limits the executive power of the State with respect to any matter where both the Legislature
of the State and the Parliament have power to make laws, where the Constitution or any law
has expressly conferred executive power upon the Union.

3. The Learned Attorney General mentioned that it is inappropriate to split up those Sections
under which the conviction was made as this would lead to a complete absurd situation
wherein for particular offences the Central Government or Union would be the appropriate
Government, and in other cases, the State Government would be the appropriate Government
to take up the matter. For this the AG relied on the decision of the Supreme Court in S.R.
19
Bommai v. Union of India .
4. The State Government didn’t considered the merits and facts of the case and hastily took
the decision of remission of the sentence and release of the seven convicts which is in
contradiction to the statutory provisions and also to the law laid down by the Apex Court. It is
pointed out by the Union of India it is necessary to apply mind while taking decision or
making proposition, which is entirely lacking in the present factual situation. There are no
cogent reasons given in the letter addressed to the Central Government.

5. Additionally, learned Attorney General formulated an alternative argument and stated that
once the death sentence of a convicted person has been commuted to life imprisonment, the
same needs to be inferred to mean the entire life of the convict and hence the executive
thereafter, should not exercise the power of remission of sentence.

CONTENTIONS ON BEHALF OF THE RESPONDENTS

1. The Learned Senior Counsel appearing on behalf of the State of Tamil Nadu submitted that
the Central Government is the appropriate Government where sentence is for an offence
against any law relating to a matter to which the executive power of the Union extends.
Hence, Article 73 of the Constitution of India makes the executive power of the Union of
India co-extensive with law making power of Parliament and power in relation to
treaties/agreement.

2. The Counsel pointed out that Article 72(3) of the Constitution of India expressly saves the
power of the States stated under Article 161 and given under other laws to grant commutation
or remission of the sentence of death from the impact of sub-clause (c) of clause (1) of

19
AIR 1994 SC 1918.

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Article 72 which provides power to the President qua all sentences of death. On a bare
reading of the executive powers of the State under Article 162 of the Constitution, the same
are being co-extensive with the legislative power and therefore, would extend to the
concurrent field under List III.

3. Alternatively, the State of Tamil, through its Senior Counsel, submitted that Entry 1 of List
III of the Seventh Schedule of the Constitution excludes offences against law with respect to
matters in List I and List II. Indian Penal Code is mentioned in Entry 1 of List III. Indian
Penal Code involves offences which relate to different subject matters, some of which fall in
List I and List II.

4. It was also pointed out that while Section 55A(b) of Indian Penal Code makes the State
Government as the appropriate Government relating to matters to which executive powers of
the State extends, it is the Government of that particular State within which the offender is
sentenced and Under Section 432(7)(b) of the Code in cases other than those mentioned in
Clause (a), the State Government is the appropriate Government. However, Section 432(7)(b)
of the Code is wider than Section 55A(b) of Indian Penal Code. It would cover matters in List
III of the Seventh Schedule of the Constitution too. Section 435(2) of the Code also is
indicative of the above. In a case like the present one, some offences may relate to matters to
which the executive power of the Union extends, while other offences may, in the same case
and qua same person, relate to matters to which the executive power of the State extends. If
in such cases, a person has been sentenced to separate terms of imprisonment which are to
run concurrently, and then unless an order has been made by the Central Government in
relation to offences to which its executive power extends, the order of the State Government
would not be given effect to.

5. It was submitted by the counsel that public safety is part of public order generally unless it
has the dimension of Defence of India or National Security or War. It is followed from the
20
decision in Romesh Thapar v. State of Madras that the State Government of Tamil Nadu is
the appropriate Government to consider remission/commutation of sentence Under Section
302 read with Section 120B of Indian Penal Code.

6. Regarding the violation of procedural requirements Under Section 432(2), learned senior
Counsel for the State submitted that it involves a procedure which applies only to remission
and suspension of sentence and not to cases of commutation as Under Section 433. Besides
that, he submitted that Section 432(2) is applicable only when an application is moved on
behalf of the convict for obtaining remission or suspension of sentence. It does not apply
when the appropriate Government exercises suo motu power. It was further submitted that the
Parliament has thought it fit to confine application of Section 432(2) to cases where an
application is made because in such cases the State has not applied its mind and it may like to
obtain the opinion of the Presiding Judge of the Court which convicted and sentenced or the
confirming court. Hence, it is the stand of the State that the power Under Section 432(1) is
very wide and it can be exercised suo motu by the appropriate Government. When the power
is exercised suo motu then Section 432(2) is not applicable.
20
AIR 1950 SC 124

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7. As far as the compliance of Section 435 of the Code is concerned, it is the stand of the
State of Tamil Nadu that it initiated the process of consultation with the Central Government
through the impugned letter as the investigation of the given case was done by the CBI. It is
further submitted that it is consultation between two plenary Governments constituted under a
Federal structure and the State of Tamil Nadu intends to engage in meaningful and effective
consultation wherein the views expressed by the Central Government during the consultation
process will certainly be given due consideration. However, it is the stand of the State that
consultation does not mean concurrence since the power of the State is a plenary power and
States are not subordinate to the Central Government.

8. It was further submitted that the contention of the Union of India regarding exercising of
the executive power of remiision or commutation is unacceptable since in this case this Court
had exercised the judicial power of commuting the death sentence into life imprisonment by
judgment dated 18.02.2014. This Court was not exercising any executive power under the
Constitution or under the Code. It was exercising its judicial power in the context of breach
of Article 21. The submission of the Union of India, if accepted, would have horrendous
consequences. A convict whose death sentence has been commuted to life imprisonment by
this Court on account of breach of Article 21 would have to remain imprisoned necessarily
till the end of his life even if he has served out 30-50 years of sentence and has become old
beyond 75 years or may be terminally ill yet there would be no power to remit/commute.

9. According Senior Counsel Mr. Ram Jethmalani, consultation does not mean concurrence
though the process of consultation involves consideration of both-the entity seeking
consultation and the consultee of the same. He further pointed out that the dominant object of
the statute coupled with use of compelling words may in some cases involve a different
meaning.

Mr. Ram Jethmalani concluded by asserting that the State Government is the appropriate
Government for granting of remission. Consequently, the proposal for release of Respondent
Nos. 1 to 7 had been duly considered in accordance with law.

DECISION OF THE COURT

The Supreme Court held that:

1. We are of the opinion that it will not be appropriate for a three Judges' Bench to examine
and decide the correctness of the verdict of another three-Judges' Bench in Swamy
21
Shraddananda v. State of Karnataka . Besides, inevitability the decision of the Constitution
22
Bench in Bhagirath v. Delhi Administration would also be required to be examined. Thus,
we deem it fit to refer this matter to a five Judges' Bench to reconcile the dispute emerged.

2. All the issues raised in the given case are of utmost critical concern for the whole of the
country, as the decision on these issues will determine the procedure for awarding sentences
in the criminal justice system. Accordingly, we direct to list Writ Petition (Crl.) No. 48 of

21 (2008) 13 SCC 767

22 (1985) 2 SCC 580

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2014 before the Constitution Bench as early as possible preferably within a period of three
months.

ANALYSIS OF THE JUDGMENT BY THE COURT

1. The Supreme Court, while giving the verdict, considered the rival contentions, examined
the relevant Constitutional provisions alongside the apposite provisions in the Code. It
observed that the issues raised in this case revolve around the exercise of power of remission
by the appropriate Government. The commutation of death penalty to life imprisonment can
befall at two stages: firstly, when the appellate Court deems it fit to commute the death
sentence to life imprisonment; and secondly, when the executive exercises its remission
power Under Article 72 by the President or Under Article 161 by the Governor or Under
Article 32 by this Court in its judicial review jurisdiction.

2. The court has placed reliance on the Judgment of the Apex Court in the case of
23
Shraddananda v. State of Karnataka , wherein it observed that the conviction of the
Appellant - Swamy Shraddananda Under Sections 302 and 201 Indian Penal Code had
attained finality. The Trial Court sentenced him to death for the offence of murder. The
Appellant's appeal and the reference made by the Sessions Judge were heard together by the
Karnataka High Court. The High Court confirmed the conviction and the death sentence
awarded to the Appellant and by judgment and order dated 19.09.2005 dismissed the
Appellant's appeal and accepted the reference made by the Trial Court without any
modification in the conviction or sentence. Against the High Court's judgment, the Appellant
had come to this Court. In view of conflicting views by two Judges of this Court, the matter
was referred to three-Judges' Bench.

3. The Court has considered all factual details and various earlier decisions, and accordingly
held that there is a good and strong basis for the Court to substitute the death sentence by life
imprisonment and directed that the convict shall not be released from prison for the rest of his
life. While considering the said issue, this Court adverted to various decisions granting
remission reducing the period of sentence in those cases in which life sentence was awarded
in lieu of death sentence.

Moreover, the Court ,while considering the question of law, concluded that inasmuch as the
issue vis-à-vis who is the 'appropriate Government' Under Section 432(7) of the Code to
exercise the power of remission is concerned, elaborate arguments had been advanced by
both sides in the course of the proceedings and the parties raised more than one ancillary
questions to the main issue like which Government-the State or the Centre will have primacy
over the subject matter enlisted in List III of the Seventh Schedule of the Constitution of
India for exercise of power of remission. Another question was also raised whether there can
be two appropriate Governments in one case.

Also, it has can be analysed that in addition, whether the term "consultation" means
"concurrence" Under Section 435(1) of the Code. Since the questions in the given case are
contingent on the final decision to be arrived at in the first issue, we unanimously deem it

23
Supra Note 21

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appropriate that these issues be decided by the Constitution Bench. Moreover, considering the
wider interpretation of the provisions of the Constitution and the Code involved in the matter,
we consider it fit to refer the matter to the Constitution Bench for an authoritative
interpretation on the same. In fact, such a course of action is mandated by the provisions of
Article 145(3) of the Constitution.

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CONCLUSION

The research in the project analysis the clemency powers of the president under Article 72 of
the Constitution of India 1950. The analysis has been done with the research of the two
prominent cases under the topic. The undue delay in the process of criminal justice system
and the procedural delay in sentencing process has given physical and mental torture to the
convicts and they themselves have become victims of the system.

Supreme Court judgments with regard to the delay in the criminal justice system and deciding
the mercy petitions have supported the values of human rights of the convicts languishing in
jails awaiting sentence.

The Supreme Court has evolved mercy jurisprudence through the cases discussed in the
project. It has also a multo fortiorari observed that exercising of power by the majestic heads
of the State under Article 72/161 is a constitutional duty/obligation/responsibility and not a
mere prerogative/privilege.

In conclusion, it can be said the judgments of the Apex Court relating mercy petitions is
another step forward of the step of judicial activism taken up by the court addressing the
human rights issues.

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