Devender Pal Singh Bhullar Vs. State of N.C.T. of Delhi

[Writ Petition (Criminal) D. No. 16039 of 2011]

[Writ Petition (Criminal) No. 146 of 2011]

[Writ Petition (Criminal) No. 86 of 2011]

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 and161 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 Article72 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 After two years, a similar resolution was introduced in the Rajya Sabha but, after considerable debate, the same was withdrawn.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 the sentence of death was set aside by a majority of 5:4, only two of the five Judges, namely, Mr. Justice Brennan and Mr. Justice Marshall were of the opinion that in view of Eighth Amendment to the American Constitution, which forbade 'cruel and unusual punishments', the imposition of death penalty was unwarranted and the opinion of the third Judge, namely, Mr. Justice Douglas could not be read as advocating total abolition of capital punishment.

The Constitution Bench then observed: "So far as we are concerned in this country, we do not have, in our constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. Indeed what is cruel and unusual may, in conceivable circumstances, be regarded as unreasonable. But when we are dealing with punishments for crimes as prescribed by law we are confronted with a serious problem. Not a few are found to hold that life imprisonment, especially, as it is understood in USA is cruel.

On the other hand, capital punishment cannot be described as unusual because that kind of punishment has been with us from ancient times right up to the present day though the number of offences for which it can be imposed has continuously dwindled. The framers of our Constitution were well aware of the existence of capital punishment as a permissible punishment under the law. For example, Article 72(1)(c) provides that the President shall have power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence "in all cases where the sentence is a sentence of death". Article 72(3) further provides that "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 obvious reference is to Sections 401 and 402 of the Criminal Procedure Code . Then again Entries 1 and 2 in List III of the Seventh Schedule refer to Criminal Law and Criminal Procedure. In Entry No. 1 the entry Criminal Law is extended by specifically including therein "all matters included in the Indian Penal Code at the commencement of this Constitution". All matters not only referred to offences but also punishments-one of which is the death sentence. Article 134 gives a right of appeal to the Supreme Court where the High Court reverses an order of acquittal and sentences a person to death.

All these provisions clearly go to show that the Constitution- makers had recognised the death sentence as a permissible punishment and had made constitutional provisions for appeal, reprieve and the like. But more important than these provisions in the Constitution is Article 21 which provides that no person shall be deprived of his life except according to procedure established by law. The implication is very clear. Deprivation of life is constitutionally permissible if that is done according to procedure established by law. In the face of these indications of constitutional postulates it will be very difficult to hold that capital sentence was regarded per se unreasonable or not in the public interest." (emphasis supplied)

5. The constitutional validity of Section 302 IPC , which prescribes death as one of the punishments, was considered by the Constitution Benchin Bachan Singh v. State of Punjab (1980) 2 SCC 684. By a majority of 4:1,the Constitution Bench declared that Section 302 IPC was constitutionally valid. Speaking for the majority, Sarkaria, J. referred to the judgments of several countries, including India, opinions of Jurists and recorded his conclusion in the following words: "To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views.

For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of the Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose.

If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware - as we shall presently show they were - of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302 of the Penal Code is unreasonable and not in the public interest.

We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19."While dealing with the argument that Section 302 violates Article 21 of the Constitution, Sarkaria, J. referred to the judgment in Maneka Gandhi v. Union of India (1978) 1 SCC 248 and observed: "Thus expanded and read for interpretative purposes, Article 21 clearly brings out the implication, that the founding fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. There are several other indications, also, in the Constitution which show that the Constitution-makers were fully cognizant of the existence of death penalty for murder and certain other offences in the Indian Penal Code.

Entries 1 and 2 in List III - Concurrent List - of the Seventh Schedule, specifically refer to the Indian Penal Code and the Code of Criminal Procedure as in force at the commencement of the Constitution. Article 72(1)(c) specifically invests the President with power to suspend, remit or commute the sentence of any person convicted of any offence, and also "in all cases where the sentence is a sentence of death". Likewise, under Article 161, the Governor of a State has been given power to suspend, remit or commute, inter alia, the sentence of death of any person convicted of murder or other capital offence relating to a matter to which the executive power of the State extends. Article 134, in terms, gives a right of appeal to the Supreme Court to a person who, on appeal, is sentenced to death by the High Court, after reversal of his acquittal by the trial court.

Under the successive Criminal Procedure Codes which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that death penalty under Section 302 of the Penal Code , either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile "the dignity of the individual" within the contemplation of the preamble to the Constitution.

On parity of reasoning, it cannot be said that death penalty for the offence of murder violates the basic structure of the Constitution." (emphasis supplied) Sarkaria, J. then considered the question whether the Court should lay down standards or norms for sentencing and answered the same in the negative bygiving the following reasons: "Firstly, there is little agreement among penologists and jurists as to what information about the crime and criminal is relevant and what is not relevant for fixing the dose of punishment for a person convicted of a particular offence. According to Cess are Beccaria, who is supposed to be the intellectual progenitor of today's fixed sentencing movement, "crimes are only to be measured by the injury done to society".

But the 20th Century sociologists do not wholly agree with this view. In the opinion of Von Hirsch, the "seriousness of a crime depends both on the harm done (or risked) by the act and degree of actor's culpability". But how is the degree of that culpability to be measured. Can any thermometer be devised to measure its degree? This is a very baffling, difficult and intricate problem. Secondly, criminal cases do not fall into set behavioristic patterns. Even within a single-category offence there are infinite, unpredictable and unforeseeable variations. No two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. Each case presents its own distinctive features, its peculiar combinations of events and its unique configuration of facts. "Simply in terms of blameworthiness or desert criminal cases are different from one another in ways that legislatures cannot anticipate, and limitations of language prevent the precise description of differences that can be anticipated."

This is particularly true of murder. "There is probably no offence", observed Sir Ernest Cowers, Chairman of the Royal Commission, "that varies so widely both in character and in moral guilt as that which falls within the legal definition of murder". The futility of attempting to lay down exhaustive standards was demonstrated by this court in Jagmohan by citing the instance of the Model Penal Code which was presented to the American Supreme Court in McGoutha (1971) 402 US 183. Thirdly, a standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be judicial. It tends to sacrifice justice at the altar of blind uniformity. Indeed, there is a real danger of such mechanical standardisation degenerating into a bed of procrustean cruelty.

Fourthly, standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. When Parliament as a matter of sound legislative policy, did not deliberately restrict, control or standardise the sentencing discretion any further than that is encompassed by the broad contours delineated in Section 354(3), the court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do."The learned Judge also referred to the judgment in Jagmohan Singh's caseand observed:

"In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on well recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By "well recognised principles" the court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. The legislative changes since Jagmohan - as we have discussed already - do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely:

(1) The extreme penalty can be inflicted only in gravest cases of extreme culpability;

(2) In making choice of the sentence, in addition to the circumstances, of the offence, due regard must be paid to the circumstances of the offender, also. xx xx xx xx xx xx Pre-planned, calculated, cold-blooded murder has always been regarded as one of an aggravated kind. In Jagmohan, it was reiterated by this Court that if a murder is "diabolically conceived and cruelly executed", it would justify the imposition of the death penalty on the murderer. The same principle was substantially reiterated by V.R. Krishna Iyer, J., speaking for the Bench in Ediga Anamma (1974) 4 SCC 443, in these terms: "The weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence.

""The learned Judge then noted that in Rajendra Prasad v. State of U.P.(1979) 3 SCC 646, the majority judgment of the three-Judge Bench had completely reversed the view taken in Ediga Anamma v. State of A.P. (1974)4 SCC 443 and observed: "It may be noted that this indicator for imposing the death sentence was crystallised in that case after paying due regard to the shift in legislative policy embodied in Section 354(3) of the Code of Criminal Procedure, 1973, although on the date of that decision (February 11, 1974), this provision had not come into force. In Paras Ram case (SLP(Crl.) Nos. 698 and 678 of 1953, decided on October, 1973) also, to which a reference has been made earlier, it was emphatically stated that a person who in a fit of anti-social piety commits "blood- curdling butchery" of his child, fully deserves to be punished with death.

In Rajendra Prasad, however, the majority (of 2:l) has completely reversed the view that had been taken in Ediga Anamma regarding the application of Section 354(3) on this point. According to it, after the enactment of Section 354(3), "murder most foul" is not the test. The shocking nature of the crime or the number of murders committed is also not the criterion. It was said that the focus has now completely shifted from the crime to the criminal. "Special reasons" necessary for imposing death penalty "must relate not to the crime as such but to the criminal". With great respect, we find ourselves unable to agree to this enunciation.

As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because "style is the man". In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator.

That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist. xxxx xxxx xxxx In Rajendra Prasad, the majority said: "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and Society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)".

Our objection is only to the word "only". While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and Society, public order and the interests of the general public, may provide "special reasons" to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions in Section 302 of the Penal Code , being reasonable and in the general public interest, do not offend Article 19, or its "ethos" nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302 of the Penal Code , fully apply to the case of Section 354(3), Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of W.B. (1979) 3 SCC 714 which follows the dictum in Rajendra Prasad.

"6. Although, in Bachan Singh's case, the Constitution Bench upheld the constitutional validity of Section 302 IPC , it did not enumerate the types of cases in which death penalty should be awarded instead of life imprisonment. A three-Judge Bench considered this issue in Machhi Singh v. State of Punjab (1983) 3 SCC 470. M.P. Thakkar, J. wrote the judgment on behalf of the Bench with the following prelude: "Protagonists of the "an eye for an eye" philosophy demand "death-for- death". The "Humanists" on the other hand press for the other extreme viz. "death-in-no-case". A synthesis has emerged in Bachan Singh v. State of Punjab wherein the "rarest-of-rare-cases" formula for imposing death sentence in a murder case has been evolved by this Court. Identification of the guidelines spelled out in Bachan Singh in order to determine whether or not death sentence should be imposed is one of the problems engaging our attention, to which we will address ourselves in due course.

"Thakkar, J. then noted that a feud between two families triggered five incidents in quick succession in five different villages resulting in death of 17 persons and approved the views expressed by the Sessions Court and the High Court that the appellants were guilty of committing heinous crimes. He then proceeded to observe: "The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence-in-no-case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it.

The very existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by "killing" a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty.

But the community will not do so in every case. It may do so "in rarest of rare cases" when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti- social or abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder when the murder is committed for a motive which evinces total depravity and meanness.

For instance when

(a) a hired assassin commits murder for the sake of money or reward

(b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or

III. Anti-social or socially abhorrent nature of the crime (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath.

For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(b) In cases of "bride burning" and what are known as "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime when the crime is enormous in proportion.

For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder When the victim of murder is

(a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder

(b) a helpless woman or a person rendered helpless by old age or infirmity

(d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons."The learned Judge then culled out the following propositions from the majority judgment in Bachan Singh's case:

"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

"7. The discussion on the subject would remain incomplete without a reference to the concurring judgment of Fazal Ali, J, who was a member of the Constitution Bench in Maru Ram v. Union of India (1981) 1 SCC 107. The main question considered in that case was whether Section 433A of the Code of Criminal Procedure , 1973 (Cr.P.C.) was violative of Article 14 of the Constitution and whether the provisions contained therein impinge upon the power vested in the President and the Governor under Articles 72 and 161 of the Constitution. While expressing his agreement with the main judgment authored by Krishna Iyer, J. on the scope of Section 433A Cr.P.C. , FazalAli, J. spelt out the following reasons for imposing deterrent sentences:

"(1) to protect the community against callous criminals for a long time,

(2) to administer as clearly as possible to others tempted to follow them into lawlessness on a war scale if they are brought to and convicted, deterrent punishment will follow, and

(3) to deter criminals who are forced to undergo long-term imprisonment from repeating their criminal acts in future.

Even from the point of view of reformative form of punishment "prolonged and indefinite detention is justified not only in the name of prevention but cure. The offender has been regarded in one sense as a patient to be discharged only when he responds to the treatment and can be regarded as safe" for the society."The learned Judge then referred to the judgment in Bachan Singh's case and observed:

"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 v. 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 the Penal Code but what 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 victim logy and the sufferings of the people who die, suffer or are maimed at the hands of criminals."

(emphasis supplied)

8. Even after the judgments in Bachan Singh's case and Machhi Singh'scase, Jurists and human rights activists have persisted with their demand for the abolition of death penalty and several attempts have been made to persuade the Central Government to take concrete steps in this regard. It is a different story that they have not succeeded because in recent years the crime scenario has changed all over the world. While there is no abatement in the crimes committed due to personal animosity and property disputes, people across the world have suffered on account of new forms of crimes. The monster of terrorism has spread its tentacles in most of the countries. India is one of the worst victims of internal and external terrorism.

In the last three decades, hundreds of innocent lives have been lost on account of the activities of terrorists, who have mercilessly killed people by using bullets, bombs and other modern weapons. While upholding the constitutional validity of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) in Kartar Singh v. State of Punjab(1994) 3 SCC 569, this Court took cognizance of the spread of terrorism in the world in general and in India in particular, in the following words: "From the recent past, in many parts of the world, terrorism and disruption are spearheading for one reason or another and resultantly great leaders have been assassinated by suicide bombers and many dastardly murders have been committed.

Deplorably, determined youths lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity. In spite of the drastic actions taken and intense vigilance activated, the terrorists and militants do not desist from triggering lawlessness if it suits their purpose. In short, they are waging a domestic war against the sovereignty of their respective nations or against a race or community in order to create an embryonic imbalance and nervous disorder in the society either on being stimulated or instigated by the national, transnational or international hard-core criminals or secessionists etc. Resultantly, the security and integrity of the countries concerned are at peril and the law and order in many countries is disrupted. To say differently, the logic of the cult of the bullet is hovering the globe completely robbing off the reasons and rhymes.

Therefore, every country has now felt the need to strengthen vigilance against the spurt in the illegal and criminal activities of the militants and terrorists so that the danger to its sovereignty is averted and the community is protected. Thus, terrorism and disruptive activities are a worldwide phenomenon and India is not an exception. Unfortunately in the recent past this country has fallen in the firm grip of spiralling terrorists' violence and is caught between the deadly pangs of disruptive activities. As seen from the Objects and Reasons of the Act 31 of 1985, "Terrorists had been indulging in wanton killings, arson, looting of properties and other heinous crimes mostly in Punjab and Chandigarh" and then slowly they expanded their activities to other parts of the country i.e. Delhi, Haryana, U.P. and Rajasthan.

At present they have outstretched their activities by spreading their wings far and wide almost bringing the major part of the country under the extreme violence and terrorism by letting loose unprecedented and unprovoked repression and disruption unmindful of the security of the nation, personal liberty and right, inclusive of the right to live with human dignity of the innocent citizens of this country and destroying the image of many glitzy cities like Chandigarh, Srinagar, Delhi and Bombay by strangulating the normal life of the citizens.

Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation. Everyday, there are jarring pieces of information through electronic and print media that many innocent, defenceless people particularly poor, politicians, statesmen, government officials, police officials, army personnel inclusive of the jawans belonging to Border Security Force have been mercilessly gunned down. No one can deny these stark facts and naked truth by adopting an ostrich like attitude completely ignoring the impending danger. Whatever may be the reasons, indeed there is none to deny that.

"THE FACTS:

9. We shall now advert to the facts necessary for disposing the above noted writ petitions, one of which was jointly filed by Shri Devender Pal Singh Bhullar (hereinafter referred to as 'the petitioner'), who was convicted by the designated Court, Delhi for various offences under TADA and IPC and Delhi Sikh Gurdwara Management Committee. Later on, the Court accepted the oral request made by learned senior counsel for the petitioners and deleted the name of petitioner No.2 from the array of parties. The other writ petition has been filed by the wife of the petitioner and the third has been filed by Justice on Trial Trust, a non-Government organization registered under the Bombay Public Trusts Act,1950.

9.1 After obtaining the degree of Bachelor of Engineering from Guru Nanak Engineering College, Ludhiana in 1990, the petitioner joined as a teacher in the same college. He was suspected to be involved in the terrorist activities in Punjab and it is said that he was responsible for an attempt made on the life of Shri Sumedh Singh Saini, the then Senior Superintendent of Police, Chandigarh on 29.8.1991. Shri Saini's car was blasted by remote control resulting in the death of some of his security guards. The petitioner was also suspected to be responsible for an attack on the car cavalcade of the then President of Youth Congress Maninderjit Singh Bitta, in Delhi on 10.9.1993.

As a result of the blast caused by using 40 kgs.RDX, 9 persons were killed and 17 were injured. Apprehending his arrest and possible elimination by the police as is alleged to have been done in the case of his father, uncle and friend Balwant Singh Multani, the petitioner decided to go to Canada. However, on the basis of information supplied by the Indian authorities, he was taken into custody at Frankfurt Airport and deported to India. He was charged with offences under Sections419, 420, 468 and 471 IPC , Section 12 of the Passports Act, 1967 and Sections 2, 3 and 4 TADA. The designated Court, Delhi found him guilty and sentenced him to death. The appeal filed by him was dismissed by this Court vide judgment titled Devender Pal Singh v. State (NCT of Delhi),(2002) 5 SCC 234. The review petition filed by the petitioner was also dismissed by this Court vide order dated 17.12.2002.

9.2 Soon after dismissal of the review petition, the petitioner submitted petition dated 14.1.2003 to the President under Article 72 of the Constitution and prayed for commutation of his sentence. Delhi Sikh Gurdwara Management Committee sent letters dated 28.1.2003 to the then President, Dr. A.P.J. Abdul Kalam; the then Prime Minister, Shri Atal Bihari Bajpai and the former Prime Minister, Shri H.D. Deve Gowda asking for a meeting with them in connection with commutation of the death sentence awarded to the petitioner. After three years, Delhi Sikh Gurdwara Management Committee submitted representations dated 6.4.2006 and 29.9.2006to Dr. A.P.J. Abdul Kalam and the Prime Minister Dr. Manmohan Singh and reiterated their demand for a meeting. In the letter sent to Dr. Manmohan Singh, it was mentioned that the Governments of Germany and Canada had made strong representation for clemency. It was also pointed out that Germany has already abolished death penalty and in terms of Section 34C of the Extradition Act, 1962, death penalty cannot be imposed if the laws of the State which surrenders or returns the accused do not provide for imposition of death penalty for such crime. The Committee also made a mention of large number of representations made by the Sikh community, particularly those settled in Canada, for grant of clemency to the petitioner.

9.3 During the pendency of the petition filed under Article 72, the petitioner filed Curative Petition (Crl.) No. 5 of 2003, which was dismissed by this Court on 12.3.2003.

9.4 The files produced by the learned Additional Solicitor General show that even before the petition filed by the petitioner could be processed by the Ministry of Home Affairs, Government of India, the President's Secretariat forwarded letter dated 25.12.2002 sent by Justice A.S. Bains(Retd.), Chairman, Punjab Human Rights Organization and others in the name of 'Movement Against State Repression, Chandigarh', for commutation of death sentence awarded to the petitioner on the ground that in the case of Abu Salem, the Government of India had given an assurance to the Government of Portugal that on his deportation, Abu Salem will not be awarded deathpenalty.9.5 In April 2003, the President's Secretariat forwarded to the Ministry of Home Affairs, the petitions received from the following personalities for showing clemency to the petitioner:

(1) Mr. David Kilgour, Secretary of State (Asia Pacific);

(2) Department of Foreign Affairs and International Trade, Canada;

(3) Congress of the United States, Washington;

(4) Mr. Tony Baldry, MP, House of Commons, London;

(5) Shri Ram Jethmalani, M.P. (Rajya Sabha);

(6) Shri Justice A.S. Bains, former Judge and Convenor, Devinderpal Singh Bhullar Defence Committee; and

(7) Shri Simranjit Singh Mann, M.P. (Lok Sabha).

9.6 On 3.6.2003, the Ministry of External Affairs forwarded two communications received by it from the Greek Ambassador, in his capacity as President of the European Union Ambassador in New Delhi, who conveyed the European Union's strong conviction against the death sentence and pleaded for clemency in favour of the petitioner. Similar communications were sent by Mr. Jean Lamberti, Member European Parliament, Brussels, and various Sikh forums/organizations from Punjab and U.K.

9.7 After the matter was processed at different levels of the Government, in the backdrop of internal and external pressures, the case was finally submitted to the President on 11.7.2005 with the recommendation that the mercy petition of the petitioner be rejected. It is not borne out from the record as to what happened for the next five years and nine months, but this much is evident that no decision was taken by the President.

9.8 On 29.4.2011, the Ministry of Home Affairs sent a request to the President's Secretariat to return the file of the petitioner. On 6.5.2011,the file was withdrawn from the President's Secretariat for reviewing the petitioner's case. The matter was again examined in the Ministry of Home Affairs and on 10.5.2011, the then Home Minister opined that those convicted in the cases of terrorism do not deserve any mercy or compassion and accordingly recommended that the sentence of death be confirmed. The President accepted the advice of the Home Minister and rejected the mercy petition.

The petitioner was informed about this vide letter dated13.6.2011 sent by Deputy Secretary (Home) to the Jail Authorities. The relevant portion of the decision taken by the President, which was incorporated in letter dated 30.5.2011 sent by Joint Secretary (Judicial),Ministry of Home Affairs, Government of India to the Principal Secretary, Home Department, Government of NCT of Delhi, reads as under: "The President of India has, in exercise of the powers under Article 72 of the Constitution of India, been pleased to reject the mercy petition submitted by the condemned prisoner Devender Pal Singh and petitions on his behalf from others. The prisoner may be informed of the orders of the President act accordingly.

"9.9 After rejection of his petition by the President, the petitioner sought leave of the Court and was allowed to amend the writ petition and make a prayer for quashing communication dated 13.6.2011.9.10 While issuing notice of Writ Petition (Criminal) D. No.16039 of 2011(unamended), this Court directed the respondent to clarify why the petitions made by the petitioner had not been disposed of for more than 8years. In compliance of the Court's directive, Shri B.M. Jain, Deputy Secretary (Home) filed short affidavit dated 19/21.7.2011. Subsequently, Shri J. L. Chugh, Joint Secretary, Ministry of Home Affairs, filed detailed affidavit, paragraphs 7 and 8 of which are extracted below:

"7. Since the Mercy Petitions remained pending consideration of the President's Secretariat a request was made by the Ministry of Home Affairs on 20.04.2011 for withdrawal of the file of the mercy petition from President's Secretariat for review of this case for consideration of the Hon'ble President of India. The file was received by the Ministry of Home Affairs on 03.05.2011 from the President's Secretariat and after reexamination of the case the file was again submitted on 10.05.2011 to the President's Secretariat for decision of the Hon'ble President of India. Finally the Hon'ble President was pleased to reject the Mercy Petition of the petitioner on 25.05.2011.

It is submitted that the file of the Mercy Petition along with decision of the Hon'ble President was received by the M/o Home Affairs on 27.05.2011 and the M/o Home Affairs communicated the decision of the Hon'ble President to the GNCT of Delhi on 30.05.2011. The details of cases of mercy petitions submitted to President's Secretariat and decided are as under:

Tenure

Cases submitted/resubmitted to the President's Secretariat

Decision Arrived

NDA

(March 1998 to May 2004)

UPA I

(May 2004 to April 2009)

UPA II

(May 2009 to 30.9.2011)

8. With reference to the above figure, it is submitted that there were 28 Mercy petitions of death convicts pending under Article 72 of the Constitution in October 2009. Two cases were received in November 2009 and two new Mercy Petition cases have been received in 2011 (till 30th September, 2011). This makes the total number of Mercy Petitions 32 as on 30.09.2011. After the new Government was formed in May 2009, in September 2009 it was decided to recall the cases pending with the President's Secretariat for review in the Ministry of Home Affairs, to assist in expediting a decision by the President of India in each case. The cases were recalled from President's Secretariat one-by-one, on the basis of the date of trial court judgment and were resubmitted to the President's Secretariat after review. Recalling of the cases was not under a Constitutional provision but an administrative decision to ensure a fair and equal treatment of all cases and to assist in expediting a decision by the Hon'ble President. Till 30.09.2011, 25 Mercy Petition were resubmitted/submitted to the President's Secretariat. The Hon'ble President decided one Mercy Petition in November 2009, four Mercy Petitions in 2010 and eight Mercy Petitions in 2011 (till 30th September, 2011). Therefore, a total of 13 Mercy Petitions have been decided by the President since November 2009. Presently, 19 Mercy Petitions are pending under Article 72 of the Constitution; out of which 14 are pending with President's Secretariat and five are pending with Ministry of Home Affairs (including the two new mercy petitions which have been received in 2011).

"ARGUMENTS:

10. Shri K.T.S. Tulsi, learned senior counsel for the petitioner relied upon the judgments in T.V. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC68, K.P. Mohd. v. State of Kerala 1984 Supp. SCC 684 and Javed Ahmed v. State of Maharashtra (1985) 1 SCC 275 and argued that 8 years' delay in the disposal of mercy petition should be treated as sufficient for commutation of death sentence into life imprisonment. Shri Tulsi also referred to the judgments in Peter Bradshaw v. Attorney General Privy Council Appeal Nos.36 of 1993, Court of Appeal, Barbados, Hen field v. Attorney General (1996)UKPK 36, Catholic Commission v. Attorney General (2001) AHRLR (ZWSC 1993),Commonwealth v. O'Neal (1975) 339 NE 2d 676 and De Freitas v. Benny (1976)AC 239 and argued that even though the judgments of other jurisdictions are not binding on this Court, the propositions laid down therein can provide useful guidance for proper understanding of the ambit and scope of the power vested in the President under Article 72 and the Governor under Article 161 of the Constitution.

Shri Tulsi then referred to the judgments in Vivian Rodrick v. State of Bengal (1971) 1 SCC 468, State of U.P. v. Suresh (1981) 3 SCC 653, Neiti Sreeramulu v. State of Andhra Pradesh (1974)3 SCC 314, State of U.P. v. Lala Singh (1978) 1 SCC 4 and Sadhu Singh v. State (1978) 4 SCC 428 to show that this Court has ordered commutation of death sentence where the delay was between one and seven years. Learned senior counsel invited our attention to the information obtained from Rashtrapati Bhawan under the Right to Information Act, 2005 and argued that long delay on the President's part in deciding the mercy petitions is inexplicable.

He emphasized that 8 years' delay has seriously affected the petitioner's health, who has become mentally sick and this should be treated as an additional factor for commutation of death sentence awarded to him. In support of this submission, Shri Tulsi relied upon the records of Deen Dayal Upadhyay Hospital, Hari Nagar, New Delhi and the Institute of Human Behaviors And Allied Sciences, Delhi as also certificate dated2.9.2011 issued by Dr. Rajesh Kumar, Associate Professor in Psychiatry at the Institute. In the end, Shri Tulsi made an appeal that the Court should take a sympathetic view in the petitioner's case because there is a sea change in the situation in Punjab.

11. Shri Ram Jethmalani, learned senior counsel, who assisted the Court as an Amicus extensively referred to the judgments in Vatheeswaran's case, K.P. Mohd.'s case and Javed Ahmed's case and argued that the rejection of the petition filed by the petitioner should be quashed because there was unexplained delay of 8 years. Learned senior counsel forcefully argued that the judgment in Triveniben v. State of Gujarat (1989) 1 SCC 678 does not lay down correct law because the Bench which decided the matter did not notice the judgment of another Constitution Bench in Kehar Singh v. Union of India (1989) 1 SCC 204. Learned senior counsel pointed out that while deciding the petition filed under Article 72 of the Constitution, the President can independently consider the issue of guilt of the accused and accept the mercy petition without disturbing the finding recorded by the Court.

Shri Jethmalani submitted that attention of the Bench which decided Triveniben's case does not appear to have been drawn to the views expressed in other judgments that in cases where the accused is convicted for murder, life imprisonment is the normal punishment and death penalty can be inflicted only in the rarest of rare cases, which involve extraordinary brutality in the commission of the crime or other aspects of heinousness. Learned senior counsel then argued that delay in deciding a mercy petition filed under Article 72 or Article 161 of the Constitution due to executive indifference or callousness or other extraneous reasons should always be treated as sufficient for commutation of death sentence into life imprisonment.

12. Shri Andhyarujina, learned senior counsel, who also assisted the Court as an Amicus commenced his submissions by pointing out that the power reposed in the President under Article 72 and the Governor under Article161 of the Constitution is not a matter of grace or mercy, but is a constitutional duty of great significance and the same has to be exercised with great care and circumspection keeping in view the larger public interest.

He referred to the judgment of the U.S. Supreme Court in Biddlev. Perovoch 274 US 480 as also the judgments of this Court in Kehar Singh's case and Epuru Sudhakar v. Government of A.P. (2006) 8 SCC 161 and submitted that the power to grant pardon etc. is to be exercised by the President not only for the benefit of the convict, but also for the welfare of the people. Learned senior counsel submitted that inordinate delay in disposal of a petition filed under Article 72 or 161 is cruel, inhuman and degrading. He relied upon a passage from the book titled "The Death Penalty" A Worldwide Perspective by Roger Hood & Carolyne Hoyle 4th Ed. Pages 175-186 and submitted that keeping a convict in suspense for yearstogether is totally unjustified because it creates adverse physical conditions and psychological stress on the convict under sentence of death.

Shri Andhyarujina relied on Riley v. Attorney General of Jamaica (1983) 1AC 719, Pratt v. Attorney General of Jamaica (1994) 2 AC 1 and argued that except in cases involving delay by or on behalf of the convict, the Court should always lean in favour of commutation of death sentence. Learned senior counsel lamented that in a large number of cases, the President did not decide the petitions filed under Article 72 and, therefore, the Court should consider the desirability of ordering commutation of death sentence in all such cases.

13. Shri Shyam Divan, Senior Advocate, who appeared for the petitioner in SLP(Crl.) No.1105 of 2012 submitted that if delay in completion of the proceedings is considered as a relevant factor by the High Courts and this Court for converting the death sentence into life imprisonment, delay in the execution of the death sentence should be treated by the President as sufficient for invoking the power vested in him under Article 72 of the Constitution for grant of pardon. In support of his submissions, Shri Divan relied upon the judgments in Vivian Rodrick' case, Madhu Mehta v. Union of India (1989) 3 SCR 775, Daya Singh v. Union of India (1991) 3 SCC61 and Shivaji Jaising Babar v. State of Maharashtra (1991) 4 SCC 375.

14. Shri K.V. Vishwanathan, learned senior counsel, who argued on behalf of the intervenor, PUDR, submitted that the attempt made by the respondent to equate the delay in judicial processes and the delay in executive processes should be rejected in view of the judgment in Triveniben's case because there is a marked qualitative difference between the judicial and executive processes. Learned senior counsel submitted that when a matter remains pending before the Court, the State and the accused take adversarial positions and submit their dispute before the judiciary for resolution whereas under the clemency jurisdiction, the accused pleads for mercy before the same party that prosecuted him.

Learned senior counsel emphasized that there is an element of total submissiveness and surrender when mercy/pardon is sought by the accused and there is no adversarial role at this stage. Shri Vishwanathan relied upon the minority judgment of the Privy Council in Noel Riley v. Attorney General (supra) and argued that the prolonged incarceration of a death row convict under the guise that the mercy petitions are pending disposal or due to gross delay in disposal of mercy petitions renders the sentence of death in-executable. Learned senior counsel pointed out that India is a signatory to a number of International Covenants and Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenants on Civil and Political Rights state that no-one should be subjected to cruel, inhuman or degrading treatment or punishment and submitted that long incarceration awaiting a verdict on a condemned prisoner's mercy petition amounts to cruel and inhuman treatment of such prisoner, which amounts to violation of these Covenants.

Learned senior counsel also referred to the memorandum of the Ministry of Home Affairs relating to "Procedure regarding petitions for mercy in death sentence cases" and submitted that various clauses thereof recognise the need for handling the disposal of mercy petitions with utmost expedition and speed. In support of his argument that delay should be treated as sufficient for commutation of death sentence into life imprisonment, Shri Vishwanathan relied upon the judgments of this Court in Madhu Mehta's case and Jagdish v. State of Madhya Pradesh (2009) 9 SCC 495and a judgment from Zimbabwe being Catholic Commission for Justice andPeace in Zimbabwe v. Attorney General, Zimbabwe & Ors. 1993 (4) SA 239(ZS).

15. Shri Harin P. Raval, learned Additional Solicitor General emphasized that the disposal of petitions filed under Articles 72 and 161 of the Constitution requires consideration of various factors, i.e., the nature of crime, the manner in which the crime is committed and its impact on the society and that the time consumed in this process cannot be characterized as delay. Shri Raval pointed out that the petitions filed by and on behalf of the petitioner were considered at various levels of the Government in the light of the representations made by various individuals including public representatives from within and outside the country apart from different organizations all of whom had espoused his cause and, therefore, it cannot be said that there was undue delay in the disposal of the petition.

Learned Additional Solicitor General then submitted that no timeframe can be fixed for the President to decide the petitions filed under Article 72 and delay cannot be a ground for commuting the death sentence imposed on the petitioner ignoring that he was convicted for a heinous crime of killing nine innocent persons. He relied upon the proposition laid down by the Constitution Bench in Triveniben's case that no fixed period of delay in the disposal of petitions filed under Article 72 or 161can be judicially prescribed to make the sentence of death in-executable and argued that the contrary views expressed by smaller Benches in Vatheeswaran's case and Javed Ahmed's case should be declared as not laying down correct law.

16. The arguments of the learned counsel for the parties/intervenor and the learned Amicus have given rise to the following questions:

(a) What is the nature of power vested in the President under Article 72 and the Governor under Article 161 of the Constitution?

(b) Whether delay in deciding a petition filed under Article 72 or 161 of the Constitution is, by itself, sufficient for issue of a judicial fiat for commutation of the sentence of death into life imprisonment irrespective of the nature and magnitude of the crime committed by the convict and the fact that the delay may have been occasioned due to direct or indirect pressure brought upon the Government by the convict through individuals, groups of people and organizations from within or outside the country or failure of the concerned public authorities to perform their duty?

(c) Whether the parameters laid down by the Constitution Bench in Triveniben's case for judging the issue of delay in the disposal of a petition filed under Article 72 or 161 of the Constitution can be applied to the cases in which an accused has been found guilty of committing offences under TADA and other similar statutes?

(d) What is the scope of the Court's power of judicial review of the decision taken by the President under Article 72 and the Governor under Article 161 of the Constitution, as the case may be?17. We can find abstract answers to each of the aforesaid questions in the judicial pronouncements of this Court and while doing so, we can also derive help from the judgments of other jurisdictions, but the most important issue which calls for in depth examination, elucidation and determination in these cases is whether delayed disposal of the petition filed under Article 72 can justify judicial review of the decision taken by the President not to grant pardon and whether the Court can ordain commutation of the sentence of death into life imprisonment ignoring the nature and magnitude of the crime, the motive and manner of commission of the crime, the type of