Holding

Delay in deciding a mercy petition, even when substantial, is not a sufficient ground to overturn the President's decision not to grant pardon, particularly in cases involving convictions under TADA.

Summary

The petitioners, convicted under the Terrorist and Disruptive Activities (Prevention) Act (TADA) and sentenced to death, sought commutation of their sentences under Article 72 of the Constitution. After a delay of about eight years in deciding the mercy petition, they argued that the delay itself warranted conversion of the death sentence to life imprisonment. The Court examined the nature of the President's clemency power, the relevance of delay, and the scope of judicial review. It held that the power under Articles 72 and 161 is a constitutional responsibility, exercised on the advice of the Council of Ministers, and that delay alone, especially in TADA cases, is not a sufficient ground to set aside the President's decision. Consequently, the Court dismissed the writ petitions, upholding the President's refusal to commute the death sentence.

Issues considered

The nature and scope of the power vested in the President under Article 72 and the Governor under Article 161 of the Constitution.
Whether an inordinate delay in disposing of a mercy petition under Articles 72/161 is, by itself, sufficient to compel commutation of a death sentence.
Whether the parameters laid down in Triveniben v. State of Gujarat for assessing delay can be applied to convictions under TADA and similar statutes.
The extent of judicial review over the President's or Governor's decision to reject a mercy petition.

Legislation cited

Code of Criminal Procedure, 1973s. 354(3), s. 401, s. 402, s. 432, s. 433, s. 433A
General Clauses Act, 1897
Indian Penal Code, 1860s. 302, s. 419, s. 420, s. 468, s. 471
Passports Act, 1967s. 12
Terrorist and Disruptive Activities (Prevention) Act, 1987

Subjects

death penaltypresidential pardonArticle 72Article 161TADAmercy petitiondelayjudicial reviewcommutationcapital punishmentexecutive clemency

Judgment

[2013] 6 S.C.R. 676

A DEVENDER PAL SINGH BHULLAR
v.
STATE OF N.C.T. OF DELHI
(Writ Petition (Criminal) D. No. 16039 of 2011)
APRIL 12, 2013
B
[G.S. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]

Constitution of India, 1950:
c
Articles 72 and 161 - Petition under- For grant of pardon
- Delay is disposal of - Whether sufficient ground for
commuting the death sentence to life imprisonment by judicial
forum - Held: The Court cannot exercise power of judicial
review only on the ground of undue delay - the rule that long
0
delay may be the ground for commutation of death sentence,
cannot be invoked in the case where conviction is under
TADA - In the present case, the petitioner having been
convicted under TADA, the decision taken by the President
not to grant pardon, cannot be quashed by taking resort to
E judicial review - Terrorist and Disruptive Activities
(Prevention) Act, 1987.

Articles 72 and 161 - Power under - Nature of - Held:
The power is neither a matter of grace nor a matter of privilege
F - It is an important constitutional responsibility to be
discharged by the highest executive, keeping in consideration
larger public interest and welfare of the people - The power
has to be exercised by taking into cognizance, the relevant
facts after taking aid and advice of the Council of Minister.
G
Articles 72 and 161 - Decision under - Judicial review
of - Scope of - Held: The scope of judicial review of the
decision passed u/Arts. 721161 is very limited - The Court in
such cases can neither sit in appeal nor exercise the power
H 676
' DEVENDER PAL SINGH BHULLAR v. STATE OF
N.C.T. OF DELHI
677

of review - It can interfere only where it finds that the decision A
is taken without application of mind to the relevant factors, or
the decision is founded on the extraneous or irrelevant
considerations, or is vitiated due to malafides or patent
arbitrariness - In the facts of the present case, there is no valid
ground to interfere with the decision of the President not to B
grant pardon u!Art. 72 - Judicial Review.

Art. 72 - Petition under - Delay in disposal - About 18
petitions filed between the years 1999 and 2011 remained
pending for a period ranging from 1 year to 13 years - Courts C
showed its concern with the hope that such petitions would be
disposed of in future without undue delay.

The questions for consideration in the present
petitions were:
D
(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
Articles 72 or 161 of the Constitution is, by itself, sufficient E
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 F
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 G
Constitution Bench in Triveniben vs. State of Gujarat 1989
(1) SCR 509 for judging the issue of delay in the disposal
of a petition filed under Articles 72 or 161 of the
Constitution can be applied to the cases in which an
accused has been found guilty of committing offences
H
678 SUPREME COURT REPORTS [2013] 6 S.C.R.

A 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
8 Constitution, as the case may be?
Dismissing the petitions, the Court

HELD: 1. The power vested in the President under
Article 72 and the Governor under Article 161 of the
c Constitution is manifestation of prerogative of the State.
It is neither a matter of grace nor a matter of privilege, but
is an important constitutional responsibility to be
discharged by the highest executive, keeping in view the
considerations of larger public interest and welfare of the
0 people. While exercising power under Article 72, the
President is required to act on the aid and advice of the
Council of Ministers. In tendering its advice to the
President, the Central Government is duty bound to
objectively place the case of the convict with a clear
E indication about the nature and magnitude of the crime
committed by him, its impact on the society and all
incriminating and extenuating circumstances. The same
is true about the State Government, which is required to
give advice to the Governor to enable him to exercise
F power under Article 161 of the Constitution. On receipt
of the advice of the Government, the President or the
Governor, as the case may be, has to take a final decision
in the matter. Although, he/she cannot overturn the final
verdict of the Court, but in appropriate case, the President
or the Governor, as the case may be, can after scanning
G the record of the case, form his/her independent opinion
whether a case is made out for grant of pardon, reprieve,
etc.. In any case, the President or the Governor, as the
case may be, has to take cognizance of the relevant facts
and then decide whether a case is made out for exercise
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 679
N.C.T. OF DELHI
of power under Article 72 or 161 of the Constitution. [Para A
22) [728~H; 729-A-F]'

Maro Ram vs. Union of India (1981) 1 SCC 107; Kehar
Singh v. Union of India (1989) 1 SCC 204: 1988 Suppl 3
SCR 1102- followed.
B
State (Govt. of NCT of Delhi) vs. Prem Raj (2003) 7 SCC
121; EpuroSudhakar VS. Government of A.P. (2006) 8 sec
161: 2006 (7) Suppl. SCR 81 - relied on.

2.1. While imposing punishment for murder and c
similar type of offences, the Court is not only entitled, but
is duty bound to take into consideration the nature of the
crime, the motive for commission of the crime, the
magnitude of the crime and its impact on the society, the
nature of weapon used for commission of the crime, etc.. D
If the murder is committed in an extremely brutal or
dastardly· manner, which gives rise to intense and
extreme indignation in the community, the Court may be
fully justified in awarding the death penalty. If the murder
is committed by burning the bride for the sake of money E
or satisfaction of other kinds of greed, there will be ample
justification for awarding the death penalty. If the enormity
of the crime is such that a large number of innocent
people are killed without rhyme or reason, then too, '
award of extreme penalty of death will be justified. All
these factors have to be taken into consideration by the F
President or the Governor, as the case may be, while
deciding a petition filed under Article 72 or 161 of the
Constitution and the exercise of power by the President
or the Governor, as the case may be, not to entertain the
prayer for mercy in such cases cannot be characterized G
as arbitrary or unreasonable and the Court cannot
exercise power of judicial review only on the ground of
undue delay. [Para 39) [749-C-G]

Machhi Singh vs. State of Punjab (1983) 3 SCC 470: H
680 SUPREME COURT REPORTS [2013] 6 S.C.R.

A 1983 (3) SCR 413; Ediga Anamma vs. State of A.P. (1974)
4 SCC 443: 1974 (3) SCR 329; Sher Singh vs. State of
Punjab (1983) 2 SCC 344; Triveniben vs. State of Gujarat
(1989) 1 SCC 678: 1989 (1) SCR 509 - relied on.
2.2. The rule that long delay may be one of the
8
grounds for commutation of the sentence of death into
life imprisonment cannot be invoked in cases where a
person is convicted for offence under TADA or similar
statutes. Such cases stand on an altogether different
C plane and cannot be compared with murders committed
due to personal animosity or over property and personal
disputes. The seriousness of the crimes committed by
the terrorists can be gauged from the fact that many
hundred innocent civilians and men in uniform have lost
their lives. At times, their objective is to annihilate their
D rivals including the political opponents. They use bullets,
bombs and other weapons of mass killing for achieving
their perverted political and other goals or wage war
against the State. While doing so, they do not show any
respect for human lives. Before killing the victims, they
E do not think even for a second about the parents, wives,
children and other near and dear ones of the victims. The
families of those killed, suffer the agony for their entire
life, apart from financial and other losses. It is paradoxical
that the people who do not show any mercy or
F compassion for others, plead for mercy and project delay
in disposal of the petition filed under Article 72 or 161 of
the Constitution as a ground for commutation of the
sentence of death. Many others join the bandwagon to
espouse the cause of terrorists involved in gruesome
G killing and mass murder of innocent civilians and raise
the bogey of human rights. The present case is not a fit
one for exercise of the power of judicial review for
quashing the decision taken by the President not to
commute the sentence of death imposed on the
H petitioner. [Paras 39 and 40) [749-B, G-H; 750-A-E]
I
DEVENDER PAL SINGH BHULLAR v. STATE OF 681
N.C.T. OF DELHI
Madhu Mehta vs. Union of India (1989) 3 SCR 775; A
Rajendra Prasad vs. State of U.P. (1979) 3 SCC 646: 1979
(3) SCR 78; Daya singh vs. Union of India (1991) 3 SCC 61:
1991 (2) SCR 462; Piare Dusadh vs. Emperor AIR 1944 FC
1; State of U. P. vs. Lalla Singh (1978) 1 SCC 142; Vivian
Rodrick vs. State of Bengal (1971) 1 SCC 468: 1971 (3) SCR B
546; Neiti Sreeramulu vs. State of Andhra Pradesh (1974) 3
SCC 314: 1973 (3) SCR 844; Bhagwan Bux Singh vs. State
of U.P. (1978) 1 SCC 214; State of U.P. vs. Sahai (1982) 1
sec 352; Sadhu Singh VS. State (1978) 4 sec 428; Ediga
Anamma vs. State of A.P. (1974) 4 SCC 443: 1974 (3) SCR C
329; T. V. Vatheeswaran vs. State of Tamil Nadu (1983) 2
SCC 68: 1983 (2) SCR 348; K.P. Mohd. vs. Stateof Kera/a
1984 Supp. SCC 684; Sher Singh vs. State of Punjab (1983)
2 sec 344 - referred to.

Zimbabwe vs. Attorney General, Zimbabwe and Ors. 1993 D
(4) SA 239 (ZS); Riley vs. Attorney General of Jamaica (1983)
1 AC 719; Pratt vs. Attorney General of Jamaica (1994) 2 AC
1 - referred to.

"The Death Penalty - A Worldwide Perspective" - The E
study conducted by Roger Hood and Carolyn Hoyle of the
University of Oxford - referred to.

3.1. While examining challenge to the decision taken
by the President under Article 72 or the Governor under F
Article 161 of the Constitution, as the case may be, the
Court's power of judicial review of such decision is very
limited. The Court can neither sit in appeal nor exercise
the power of review, but can interfere if it is found that
the decision has been taken without application of mind
to the relevant factors or the same is founded on the G
extraneous or irrelevant considerations or is vitiated due
to malafides or patent arbitrariness. [Para 41] [750-F-G]

Maru Ram vs. Union of India (1981) 1 SCC 107; Kehar
Singh vs. Union of India (1989) 1 SCC 204: 1988 (3) Suppl. H
682 SUPREME COURT REPORTS [2013] 6 S.C.R.

A SCR 1102; Swaran Singh vs. State of U.P. (1998) 4 SCC 75:
1998 (2) SCR 206; Satpal vs. State of Hatyana (2000) 5 SCC
170: 2000 (3) SCR 858; Bikas Chatterjee vs. Union of India
(2004) 7 SCC 634; Narayan Dutt vs. State of Punjab (2011)
4 sec 353: 2011 (4) SCR 983 - relied on.
B
3.2. In the present case, the petitioner was convicted
for killing 9 innocent persons and injuring 17 others. The
designated Court found that the petitioner and other
members of Khalistan Liberation Front were responsible
for the blast. Their aim was to assassinate 'M.S.B', who
C escaped with minor injuries. The majority of this Court
upheld the judgment of the designated Court. The finding
recorded by the majority on the issue of the petitioner's
guilt, is conclusive and, while deciding the issue whether
the sentence of death awarded to the accused should be
D converted into life imprisonment, the Court cannot review
such finding. [Paras 42 and 43] [751-B; 752-F]

3.3. It is true that there was considerable delay in
disposal of the petition filed by the petitioner but, keeping
E in view the peculiar facts of the case, there is no valid
ground to interfere with the ultimate decision taken by the
President not to commute the sentence of death awarded
to the petitioner into life imprisonment. The Court can
take judicial notice of the fact that a substantial portion
F of the delay can well-nigh be attributed to the unending
spate of the petitions on behalf of the petitioner by
various persons to which reference has been made
hereinabove. [Para 44] [752-G-H; 753-A]

3.4. The files produced before the Court show that
G the concerned Ministries had, after threadbare
examination of the factors like the nature, magnitude and
intensity of crime committed by the petitioner, the
findings recorded by the designated Court and this Court
as also the plea put forward by the petitioner and his
H supporters recommended that no clemency should be
I
DEVENDER PAL SINGH BHULLAR v. STATE OF 683
N.C.T. OF DELHI
shown to the person found guilty of killing 9 innocent A
persons and injuring 17 others by using 40 kgs. ROX.
While making the recommendation, the Government had
also considered the impact of such crimes on the public
at large. Unfortunately, the petition filed by the petitioner
remained pending with the President for almost 6 years, B
i.e., between May 2005 and May 2011. During this period,
immense pressure was brought upon the Government in
the form of representations made by various political and
non-political functionaries, organizations and several
individuals from other countries. This appears to be one c
of the reasons why the file remained pending in the
President's Secretariat and no effort was made for
deciding the petitioner's case. The figures made available
through RTI inquiry reveal that during the particular
period, a large number of mercy petitions remained
0
pending with the President giving rise to unwarranted
speculations. On its part, the Ministry of Home Affairs also
failed to take appropriate steps for reminding the
President's Secretariat about the dire necessity of the
disposal of the pending petitions. What was done in April
and May, 2011 could have been done in 2005 itself and E
that would have avoided unnecessary controversy. Thus,
the delay in disposal of the petition filed by the petitioner
under Article 72 does not justify review of the decision
taken by the President in May 2011 not to entertain his
plea for clemency. [Para 45] [753-B-H; 754-A] F

3.5. Though the documents produced do give an
indication that on account of prolonged detention in jail
after his conviction and sentence to death, the petitioner
has suffered physically and mentally, the same cannot be G
relied upon for recording a finding that the petitioner's
mental health has deteriorated to such an extent that the
sentence awarded to him cannot be executed. [Para 46]
[754-B]
4. The statistics produced show that between 1950 H
684 SUPREME COURT REPORTS [2013] 6 S.C.R.

A and 2009, over 300 mercy petitions were filed of which
214 were accepted by the President and the sentence of
death was commuted into life imprisonment. 69 petitions
were rejected by the President. The result of one petition
is obscure. However, about 18 petitions filed between
8 1999 and 2011 remained pending for a period ranging
from 1 year to 13 years. This gives an impression that the
Government and the President's Secretariat have not
dealt with these petitions with requisite seriousness. The
Court hopes and trusts that in future such petitions will
C be disposed of without unreasonable delay. [Para 47]
[754-C-F]
Jagmohan Singh VS. State of U.P. (1973) 1 sec 20;
Maneka Gandhi VS. Union of India (1978) 1 sec 248: 1978
(2) SCR 621; Devender Pal Singh vs. State (NCT of Delhi},
o (2002) 5 SCC 234: 2002 (2) SCR 767; Kartar Singh vs. State
of Punjab (1994) 3 SCC 569: 1994 (2) SCR 375; Javed
Ahmed vs. State of Maharashtra (1985) 1 SCC 275: 1985 (2)
SCR 8; State of U.P. vs. Suresh (1981) 3 SCC 653; Daya
Singh vs. Union of India (1991) 3 SCC 61: 1991 (2) SCR
E 462; Shivaji Jaising Babar vs. State of Maharashtra (1991)
4 SCC 375; Jagdish vs. State of Madhya Pradesh (2009) 9
SCC 495: 2009 (14) SCR 727; State (Govt. of NCT of Delhi)
vs. Prem Raj (2003) 7 SCC 121: 2003 (2) Suppl. SCR 235
- referred to.
F Furman vs. State of Georgia, 408 US 238; Henfield vs.
Attorney General (1996) UKPK 36; Catholic Commission vs.
Attorney Gen(iral (2001) AHRLR (ZWSC 1993);
Commonwealth vs. O'Neal (1975) 339 NE 2d 676; De Freitas
vs. Benny (1976) AC 239; Biddle vs. Perovoch 274 US 480;
Catholic Commission for Justice and Peace in Zimbabwe v.
G Attorney General, Zimbabwe and Ors. (1993) 4 SA 239 (ZS)
- referred to.
Case Law Reference:
(1973) 1 sec 20 referred to Para 4
H
I
DEVENDER PAL SINGH BHULLAR v. STATE OF 685
N.C.T. OF DELHI
(1980) 2 sec 684 referred to Para 5 A
1978 (2) SCR 621 referred to Para 5
1979 (3) SCR 78 referred to Para 5
1983 (3) SCR 413 referred to Para 6
B
1994 (2) SCR 375 referred to Para 8
2002 (2) SCR 767 referred to Para 9.1
1983 (2) SCR 348 referred to Para 10
1984 Supp. sec 684
c
referred to Para 10
(1996) UKPK 36 referred to Para 10
(2001) AHRLR (ZWSC 1993)referred to Para 10
(1975) 339 NE 2d 676 referred to Para 10 D

(1976) AC 239 referred to Para 10
1971 (3) SCR 546 referred to Para 10
(1981) 3 sec 653 referred to Para 10 E
1973 (3) SCR 844 referred to Para 10
(1978) 1 sec 4 referrod to Para 10
(1978) 4 sec 428 referred to Para 10
F
1988 Suppl 3 SCR 1102 followed Para 11
274 us 480 referred to Para 12
(1983) 1 AC 719 referred to Para 12
G
(1989) 3 SCR 775 referred to Para 13
(1991) 4 sec 375 referred to Para 13
2009 (14) SCR 727 referred to Para 14
1993 (4) SA 239 (ZS) referred to Para 14 H
686 SUPREME COURT REPORTS [2013] 6 S.C.R.

A (1981) 1 sec 101 followed Para 18
1988 (3) Suppl. SCR 1102 followed Para 19
2003 (2) Suppl. SCR 235 relied on Para 20
2006 (7) Suppl. SCR 81 relied on Para 21
B
1974 (3) SCR 329 referred to Para 25
AIR 1944 FC 1 referred to Para 25
(1978) 1 sec 142 referred to Para 25
c
(1978) 1 sec 214 referred to Para 25
(1982) 1 sec 352 referred to Para 25
(1983) 2 sec 344 referred to Para 29
D 1985 (2) SCR 8 referred to Para 30
1989 (1) SCR 509 referred to Para 31
•
(1994) 2 AC 1 referred to ·Para 35

E 1991 (2) SCR 462 referred to Para 36
1991 (2) SCR 462 referred to Para 36
(1981) 1 sec 101 relied on Para 41
1988 (3) Suppl. SCR 1102 relied on Para 41
F
1998 (2) SCR 206 relied on Para 41
2000 (3) SCR 858 relied on Para 41
(2004) 1 sec 634 relied on Para 41
G
2006 (7) Suppl. SCR 81 relied on Para 41
2011 (4) SCR 983 relied on Para 41
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl)
D.No. 16039 of 2011.
H
' DEVENDER PAL SINGH BHULLAR v. s·rATE C/: 587
N.C.T. OF DELHI
Under Article 32 of the Constitution of India. A
WITH
W.P. (Crl.) Nos. 146 & 86 of 2011.

K.T.S. Tulsi, Raj Kamal, Niraj Gupta, Paran1jil Singh,
Maheen Pradhan, Ravinder Singh, Gaurang Vardhan, B
Sudhakar Joshi, Nachiketa Joshi, Ci1aitanya Joshi for the
Petitioner.

H.P. Raval, ASG, Sidhartha S. Dave, Ranjana Naryan, T.A
Khan S. Wasim A. Qadri, P.K. Dey, Harsh Parekh, Gargi c
Khanna, Shailender Saini, Shriniwas Khalap, Anirudh Sharma,
B.K. Prasad, Anil Katiyar, Shreekant N. Terdal for the
Respondent.

The Judgment of the Court was delivered by
D
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 capjtal
punishment should not be imposed irrespective of the nature E
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 F
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 G
view the old adage that man should be merciful to all living
creatures, the framers of the Constitution enacted Articles 72
and 161 under which the President or the Governor, as the case
may be, can grant pardons, reprieves, respites or remission
688 SUPREME COURT REPORTS [2013] 6 S.C.R

A of punishment or suspend, remit or commute the sentence of
any person convicted of any offence and as will be seen
hereinafter, the President has exercised power under Article
72 in large number of cases for commutation of death sentence
into life imprisonment except when the accused was found guilty
B 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
C 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
D 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:
E
"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
F 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
G 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.

H Having regard, however, to the conditions in India, to the
' DEVENDER PAL SINGH BHULLAR v. STATE OF
N.C.T. OF DELHI [GS. SINGHVI, J.)
689

variety of the social upbringing of its inhabitants, to the A
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 B
punishment."

4. The constitutionality of capital punishment was
examined by the Constitution Bench in Jagmohan Singh v.
·State of U.P. (1973) 1 sec 20. The facts of that case were C
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. D
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 E
'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: F

·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 G
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 H
690 SUPREME COURT REPORTS [2013] 6 S.C.R.

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
B 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
c 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
D
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 Ill of the Seventh Schedule refer to Criminal Law and
E 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
F sentence. Article 134 gives a right of appeal to the
Supreme Court where the High Court reverses an order
of acauittal 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
G 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
H implication is very clear. Deprivation of life is
' DEVENDER PAL SINGH BHULLAR v. STATE OF
N.C.T. OF DELHI [G.S. SINGHVI, J.]
691

constitutionally permissible if that is done according to A
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."
B
(emphasis supplied)

5. The constitutional validity of Section 302 IPC, which
prescribes death as one of the punishments, was considered
by the Constitution Bench in Bachan Singh v. State of Punjab
(1980) 2 SCC 684. By a majority of 4:1, the Constitution Bench C
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:
D
"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 E
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, F
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 G
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 H
692 SUPREME COURT REPORTS [2013) 6 S.C.R.

A 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
B 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
c 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
D for murder and other capital offences were before the
Parliament and presumably considered by it w~en 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
E 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."
F
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:
G "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
H established by valid law. There are several other
DEVENDER PAL SINGH BHULLAR v. STATE OF 693
N.C.T. OF DELHI [GS. SINGHVI, J.]
indications, also, in the Constitution which show that the A
Constitution-makers were fuHy cognizant of the existence
of death penalty for murder and certain other offences in
the Indian Penal Code. Entries 1 and 2 in List Ill -
Concurrent List - of the Seventh Schedule, specifically
refer to the Indian Penal Code and the Code of Criminal B
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". c
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. D
gives a,right of appeal to the Supreme Court to a person
who. on'apoeal. is sentenced to death by the High Court.
after reversal of his acauittal 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
E
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 F
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 G
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) H
694 SUPREME COURT REPORTS (2013] 6 S.C.R.

A Sarkaria, J. then considered the question whether the Court
should lay down standards or norms for sentencing and
answered the same in the negative by giving the following
reasons:

"Firstly, there is little agreement among penologists and
B
jurists as to what information about the crime and criminal
is relevant and what is not relevant for fixing the dose of
pu!_\is~ment for a person convicted of a particular offence.
According to Cessare Beccaria, who is supposed to be
the intellectual progenitor of today's fixed sentencing
c 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
D 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. ·

E 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
F 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
G
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
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 695
N.C.T. OF DELHI [G.S. SINGHVI, J.]
the legal definition of murder". The futility of attempting to A
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.
B
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 C
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, D
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." E

The learned Judge also referred to the judgment in
Jagmohan Singh's case and observed:

"In Jagmohan, this Court had held that this sentencing
discretion is to be exercised judicially on well recognised F
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 G
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 H
696 SUPREME COURT REPORTS [2013] 6 S.C.R.

A 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
B offender, also.

)()( xx xx xx xx xx
Pre-planned, calculated, cold-blooded murder has always
been regarded as one of an aggravated kind. In
c 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
D (1974) 4 sec 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 ...
E
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
F 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
G
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 678of1953, 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-
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 697
N.C.T. OF DELHI [GS. SINGHVI, J.]
social piety commits "blood-curdling butchery" of his child, A
fully deserves to be punished with death. In Rajendra
Prasad, however, the majority (of 2:1) 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), B
"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 c
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 0
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 E
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--. F
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 G
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 H
698 SUPREME COURT REPORTS [2013] 6 S.C.R.

A 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
B 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
c 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
D
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
E criticism applies to the view taken in Bishnu Deo Shaw v.
State of WB. (1979) 3 SCC 714 which follows the dictum
in Rajendra Prasad."

6. Although, in Bachan Singh's case, the Constitution
F 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
G 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
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 699
N.C.T. OF DELHI [G.S. SINGHVI, J.]
the "rarest-of-rare-cases'' formula for imposing death A
· 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." B

Thakkar, J. then not.ed 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 Cot!rl and the High Court that the
appellants were guilty of committing heinous crimes. He then C
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 D
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 E
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 F
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 G
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
H
700 SUPREME COURT REPORTS (2013] 6 S.C.R.

A 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
B 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
c 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,

D (1) when the house of the victim is set aflame with the
end in view to roast him alive in the house.

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

E (iit) 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
F 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
G control of the murderer or vis-a-vis whom the murderer is
in a dominating position or in a position of trust, or (c) a
murder is committed in the course for betrayal of the
motherland.

H Ill. Anti-social or socially abhorrent nature of the crime
DEVENDER PAL SINGH BHULLAR v. STATE OF 701
N.C.T. OF DELHI [G.S. SINGHVI, J.)
(a) When murder of a member of a Scheduled Caste A
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 B
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 C
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
D
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 E

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 (c) F
when the victim is a person vis-a-vis whom the murderer
is in a position of domination or trust (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 G
than personal reasons."

The learned Judge then culled out the following
propositions from the majority judgment in Bachan Singh's
case:
H
702 SUPREME COURT REPORTS [2013] 6 S.C.R.

A "(1) 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
B
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
c 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
D 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
E
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
F 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
G 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
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 703
N.C.T. OF DELHI [G.S. SINGHVI, J.]
Cr.P.C., Fazal Ali, J. spelt out the following reasons for imposing A
deterrent sentences:

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

(2) to administer as clearly as possible to otners tempted B
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 C
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 o
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:
E
"Taking into account the modern trends in penology there
are verv 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 F
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 G
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 remission's or
substituted form of punishments without undergoing at least H
704 SUPREME COURT REPORTS [2013] 6 S.C.R.

A 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
B 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
c 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
D
will be complete chaos in the entire countrv and criminals
will be let loose endangering the lives of thousands of
innocent people of our countrv. 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
E 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
F 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,
G 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
H concept, nor does Article 21 of the Constitution
DEVENDER PAL SINGH BHULLAR v. STATE OF 705
N.C.T. OF DELHI [G.S. SINGHVI, J.)
contemplate such a concept. If a person commits a 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 B
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 c
while considering the problem of penology we should not
overlook the plight of victimology and the sufferings of the
people who die, suffer or are maimed at the hands of
criminals."
(emphasis supplied) D

8. Even after the judgments in Bachan Singh's case and
Machhi Singh's case, 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
E
Government to take concrete steps in this regard. It is a different
story that they have not succeeded because in recentyears 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
F
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 G
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: H
706 SUPREME COURT REPORTS [2013] 6 S.C.R.

A "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-
B core criminals and underground extremists and attracted
by the ideology of terrorism are inpulging 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
c 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
D secessionists etc. Resultantly, the security and integrity qf
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
E 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.

F 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
G 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
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 707
N.C.T. OF DELHI [G.S. SINGHVI, J.]
by spreading their wings far and wide almost bringing the A
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 B
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- c
bath, firing, looting, mad killing even without sparing
wornen 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 D
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 E
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."
F
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 G
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 H
708 SUPREME COURT REPORTS (2013] 6 S.C.R.

A 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
B 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
C 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.
D ROX, 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
E authorities, he was taken into custody at Frankfurt Airport and
deported to India. He was charged with offences under Sections
419, 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
F 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.

G 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
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 709
N.C.T. OF DELHI [G.S. SINGHVI, J.]
and the former Prime Minister, Shri H.D. Deve Gowda asking A
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 29.9.2006 to Dr. A.P.J.
Abdul Kalam and the Prime Minister Dr. Manmohan Singh and B
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 c
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 D
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.
E
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.), F
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 G
that on his deportation, Abu Salem will not be awarded death
penalty.

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: H
710 SUPREME COURT REPORTS [2013] 6 S.C.R.

A (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;
B
(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,
c 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
D 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
E 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
F 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
G 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
H matter was again examined in the Ministry of Home Affairs and
DEVENDER PAL SINGH BHULLAR v. STATE OF 711
N.C.T. OF DELHI [G.S. SINGHVI, J.]
on 10.5.2011, the then Home Minister opined that those A
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 dated B
13.6.2011 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 c
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 D
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 E
the writ petition and make a prayer for quashing communication
dated 13.6.2011.

9.10. While issuing notic_e of Writ Petition (Criminal) D.
No.16039 of 2011 (unamended), this Court directed the
F
respondent to clarify why the petitions made by the petitioner
had not been disposed of for more than 8 years. 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. Ch ugh, Joint Secretary, Ministry of Home Affairs, filed
detailed affidavit, paragraphs 7 and 8 of which are extracted G
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 H
712 SUPREME COURT REPORTS [2013] 6 S.C.R.

A 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
B 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
c Petition along with decision of the Hon'ble President was
received by the Mio 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:
D
Tenure Cases submitted/ Decision
resubmitted to the Arrived
President's Secretariat

E NOA (March 1998 14 0
to May 2004)

UPA I (May 2004 to 28 2
April 2009)
F
UPA II (May 2009 to 25 13
30.9.2011)

8. With reference to the above figure, it is submitted that
there were 28 Mercy petitions of death convicts pending
G 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
H was formed in May 2009, in September 2009 it was
DEVENDER PAL SINGH BHULLAR v. STATE OF 713
N.C.T. OF DELHI [G.S. SINGHVI, J.]
decided to recall the cases pending with the President's A
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 B
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 c
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 0
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 E
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. F
State of Tamil Nadu (1983) 2 SCC 68, K.P. Mohd. v. State of
Kera/a 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 G
Tulsi also referred to the judgments in Peter Bradshaw v.
Attorney General Privy Council Appeal Nos. 36 of 1993, Court
of Appeal, Barbados, Henfield v. Attorney General (1996)
UKPK 36, Catholic Commission v. Attorney General (2001)
AHRLR (ZWSC 1993), Commonwealth v. O'Neal (1975) 339 H
714 SUPREME COURT REPORTS (2013] 6 S.C.R.

A 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
B 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
C 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
D 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
E records of Deen Dayal Upadhyay Hospital, Hari Nagar, New
Delhi and the Institute of Human Behaviors And Allied Sciences,
Delhi as also certificate dated 2.9.2011 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
F ·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
G 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
H Gujarat (1989) 1 SCC 678 does not lay down correct law
DEVENDER PAL SINGH BHULLAR v. STATE OF 715
N.C.T. OF DELHI [G.S. SINGHVI, J.]
because the Bench which decided the matter did not notice the A
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 B
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 c
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
0
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 E
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 Article 161 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 F
care and circumspection keeping in view the larger public
interest. He referred to the judgment of the U.S. Supreme Court
in Biddle v. 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 G
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 H
716 SUPREME COURT REPORTS (2013] 6 S.C.R.

A 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 years together
is totally unjustified because it creates adverse physical
conditions and psychological stress on the convict under
B sentence of death. Shri Andhyarujina relied on Riley v. Attorney
General of Jamaica (1983) 1 AC 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.
C 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.

D 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
E 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
F 775, Daya Singh v. Union of India (1991) 3 SCC 61 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
G 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
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 717
N.C.T. OF DELHI [G.S. SINGHVI, J.]
when a matter remains pending before the Court, the State and A
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 B
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 c
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 D
the International Covenants on Civil and Political Rights sfate
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 E
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 F
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 495 and a judgment from Zimbabwe being Catholic G
Commission for Justice and Peace 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 H
718 SUPREME COURT REPORTS (2013] 6 S.C.R.

A 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 characterised as
delay. Shri Raval pointed out that the petitions filed by and on
B 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
c that there was undue delay in the disposal of the petition.
Learned Additional Solicitor General then submitted that no time
frame 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
0 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 161
can be judicially prescribed to make the sentence of death in-
E 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
F 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?
G (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
H fact that the delay may have been occasioned due to direct
DEVENDER PAL SINGH BHULLAR v. STATE OF 719
N.C.T. OF DELHI [G.S. SINGHVI, J.]
or indirect pressure brought upon the Government by the A
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
B
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?
c
(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?
D
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
indepth examination, elucidation and determination in these
E
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 tile Court can ordain
commutation of the sentence of death into life imprisonment
ignoring the nature and magnitude of the crime, the motive and
F
manner of commission of the crime, the type of weapon used
for committing the crime and overall impact of crime on the
society apart from the fact that substantial delay in the disposal
of the petition filed under Article 72 can reasonably be
attributed to the internal and external pressure brought upon the
Government on behalf of the convict by filing a spate of petitions G
and by using other means.

Re: Question No. (a):

18, The nature of the power vested in the President under H
720 SUPREME COURT REPORTS (2013] 6 S.C.R.

A Article 72 and the Governor under Article 161 of the Constitution
was considered by the Constitution Bench in Maru Ram's case.
The main question considered in that case was whether the
power of remission vested in the Government under Section
433A Cr.P.C. is in conflict with Articles 72 and 162 of the
B Constitution. While answering the question in the negative,
Krishna Iyer, J., who authored the main judgment, observed:

"It is apparent that superficially viewed, the two powers, one
constitutional and the other statutory, are coextensive. But
two things may be similar but not the same. That is
c precisely the difference. We cannot agree that the power
which is the creature of the Code can be equated with a 1
high prerogative vested by the Constitution in the highest
functionaries of the Union and the States. The source is
different, the substance is different, the strength is different,
D although the stream may be flowing along the same bed.
We see the two powers as far from being identical, and,
obviously, the constitutional power is "untouchable" and
"unapproachable" and cannot suffer the vicissitudes of
simple legislative processes. Therefore, Section 433-A
E cannot be invalidated as indirectly violative of Articles 72
and 161. What the Code gives, it can take, and so, an
embargo on Sections 432 and 433(a) is within the
legislative power of Parliament.

Even so, we must remember the constitutional status of
F
Articles 72 and 161 and it is common ground that Section
433-A does not and cannot affect even a wee bif the
pardon power of the Governor or the President. The
necessary sequel to this logic is that notwithstanding
Section 433-A the President and the Governor continue
G
to exercise the power of commutation and release under
the aforesaid articles.

Are we back to square one? Has Parliament indulged in
legislative futility with a formal victory but a real defeat? The
H answer is "yes" and "no". Why "yes"? Because the
DEVENDER PAL SINGH BHULLAR v. STATE OF 721
N.C.T. OF DELHI [G.S. SINGHVI, J.]
President is symbolic, the Central Government is the A
reality even as the Governor is the formal head and sole
repository of the executive power but is incapable of acting
except on, and according to, the advice of his Council of
Ministers. The upshot is that the State Government. whether
the Governor likes it or not. can advice and act under Article B
161. the Governor being bound by that advice. The action
of commutation and release can thus be pursuant to a
governmental decision and the order may issue even
without the Governor's approval although. under the Rules
of Business and as a matter of constitutional courtesy, it c
is obligatory that the signature of the Governor should
authorise the pardon. commutation or release. The position
is substantially the same regarding the President. It is not
open either to the President or the Governor to take
independent decision or direct release or refuse release 0
of anyone of their own choice. It is fundamental to the
Westminster system that the Cabinet rules and the Queen
reigns being too deeply rooted as foundational to our
system no serious encounter was met from the learned
Solicitor-General whose sure grasp of fundamentals did
E
not permit him to controvert the proposition, that the
President and the Governor, be they ever so high in textual
terminology, are but functional euphemisms promptly
acting on and only on the advice of the Council of Ministers
have in a narrow area of power. The subject is now beyond
controversy, this Court having authoritatively laid down the F
Jaw in Shamsher Singh case (1974) 2 SCC 831. So, we
agree. even without reference to Article 367(1) and
Sections 3(8)(b) and 3(60)(b) of the General Clauses Act.
1897. that. in the matter of exercise of the powers under
Articles 72 and 161. the two highest dignitaries in our G
constitutional scheme act and must act not on their own
judgment but in accordance with the aid and advice of the
ministers. Article 74, after the 42nd Amendment silences
speculation and obligates compliance. The Governor vis-
a-vis his Cabinet is no higher than the President save in H
722 SUPREME COURT REPORTS [2013] 6 S.C.R.

A a narrow area which does not include Article 161. The
constitutional conclusion is that the Governor is but a
shorthand expression for the State Government and the
President is an abbreviation for the Central Government."

B (emphasis supplied)

19. The proposition laid down in Maru Ram's case was
reiterated by another Constitution Bench in Kehar Singh's case
in the following words:

c "The Constitution of India, in keeping with modern
constitutional practice, is a constitutive document,
fundamental to the governance of the country, whereby,
according to accepted political theory, the people of India
have provided a constitutional polity consisting of certain
D primary organs, institutions and functionaries to exercise
the powers provided in the Constitution. All power belongs
to the people, and it is entrusted by them to specified
institutions and functionaries with the intention of working
out, maintaining and operating a constitutional order. The
Preambular statement of the Constitution begins with the
E
significant recital:

"We, the people of India, having solemnly resolved to
constitute India into a Sovereign Socialist Secular
Democratic Republic ... do hereby adopt, enact and give
F to ourselves this Constitution."

To any civilised society, there can be no attributes more
important than the life and personal liberty of its members.
That is evident from the paramount position given by the
G courts to Article 21 of the Constitution. These twin
attributes enjoy a fundamental ascendancy over all other
attributes of the political and social order, and
consequently, the Legislature, the Executive and the
Judiciary are more sensitive to them than to the other
attributes of daily existence. The deprivation of personal
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 723
N.C.T. OF DELHI [G.S. SINGHVI, J.]
liberty and the threat of the deprivation of life by the action A
of the State is in most civilised societies regarded
seriously and, recourse, either under express constitutional
provision or through legislative enactment is provided to
the judicial organ. But, the fallibility of human judgment
being undeniable even in the most trained mind, a mind B
resourced by a harvest of experience, it has been
considered appropriate that in the matter of life and
personal liberty, the protection should be extended by
entrusting power further to some high authority to
scrutinise the validity of the threatened denial of life or the c
threatened or continued denial of personal liberty. The
power so entrusted is a power belonging to the people and
reposed in the highest dignitary of the State. In England,
the power is regarded as the royal prerogative of pardon
exercised by the Sovereign, generally through the Home
0
Secretary. It is a power which is capable of exercise on a
variety of grounds, for reasons of State as well as the
desire to safeguard against judicial error. It is an act of
grace issuing from the Sovereign. In the United States,
however, after the founding of the Republic, a pardon by E
the President has been regarded not as a private act of
grace but as a part of the constitutional scheme. In an
opinion, remarkable for its erudition and clarity, Mr Justice
Holmes, speaking for the Court in W.I. Biddle v. Vuco
Perovich (71 L Ed 1161) enunciated this view, and it has
since been affirmed in other decisions. The power to F
pardon is a part of the constitutional scheme, and we have
no doubt. in our mind. that it should be so treated also in
the Indian Republic. It has been reposed by the people
through the Constitution in the Head of the State. and
enjoys high status. It is a constitutional responsibility of G
great significance. to be exercised when occasion arises
in accordance with the discretion contemplated by the
context. It is not denied. and indeed it has been repeatedly
affirmed in the course of argument by learned counsel. Shri
Ram Jethmalani and Shri Shanti Bhushan. appearing for H
724 SUPREME COURT REPORTS [2013) 6 S.C.R.

A the petitioners that the power to pardon rests on the advice
tendered by the Executive to the President. who subject
to the provisions of Article 74(1) of the Constitution. must
act in accordance with such advice."

(emphasis supplied)
B
In that case, the Constitution Bench also considered whether
the President can, in exercise of the power vested in him under
Article 72 of the Constitution, scrutinize the evidence on record
and come to a different conclusion than the one arrived at by
C the Court and held:

"We are of the view that it is open to the President in the
exercise of the power vested in him by Article 72 of the
Constitution to scrutinise the evidence on the record of the
D criminal case and come to a different conclusion from that
, recorded by the court in regard to the guilt of, and sentence
imposed on, the accused. In doing so, the President does
not amend or modify or supersede the judicial record. The
judicial record remains intact, and undisturbed. The
President acts in a wholly different plane from that in which
E
the Court acted. He acts under a constitutional power, the
nature of which is entirely different from the judicial power
and cannot be regarded as an extension of it. And this is
so, notwithstanding that the practical effect of the
Presidential act is to remove the stigma of guilt from the
F accused or to remit the sentence imposed on him .....

The legal effect of a pardon is wholly different from a judicial
supersession of the original sentence. It is the nature of
the power which is determinative ....
G
It is apparent that the power under Article 72 entitles the
President to examine the record of evidence of the criminal
case and to determine for himself whether the case is one
deserving the grant of the relief falling within that power.
We are of opinion that the President is entitled to go into
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 725
N.C.T. OF DELHI [G.S. SINGHVI, J.]
the merits of the case notwithstanding that it has been A
judicially concluded by the consideration given to it by this
Court.

.... the power under Article 72 is of the widest amplitude,
can contemplate a myriad kinds and categories of cases B
with facts and situations varying from case to case, in which
the merits and reasons of State may be profoundly
assisted by prevailing occasion and passing time. And it
is of great significance that the function itself enjoys high
status in the constitutional scheme."
c
20. In State (Govt. of NCT of Delhi) v. Prem Raj (2003) 7
sec 121, this Court was called upon to consider whether in a
case involving conviction under Section 7 read with Section
13(1 )(d) of the Prevention of Corruption Act, 1988, the High
Court could commute the sentence of imprisonment on deposit D
of a specified amount by the convict and direct the State
Government to pass appropriate order unqer Section 433(c)
Cr.P.C. The two-Judge Bench referred to some of the
provisions of the Cr.P.C. as also Articles 72 and 161 of the
Constitution and observed: E

"A pardon is an act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts the
. individual on whom it is bestowed from the punishment the
law inflicts for a crime he has committed. It affects both the
F
punishment prescribed for the offence and the guilt of the
offender; in other words, a full pardon may blot out the guilt
itself. It does not amount to an acquittal unless the court
otherwise directs. Pardon is to be distinguished from
"amnesty" which is defined as "general pardon of political
prisoners; an act of oblivion'. As understood in common G
parlance, the word "amnesty" is appropriate only where
political prisoners are released and not in cases where
those who have committed felonies and murders are
pardoned.
H
726 SUPREME COURT REPORTS [2013] 6 S.C.R.

A )()()()( )()()()( )()()()(

"Pardon is one of the many prerogatives which have been
recognized since time immemorial as being vested in the
Sovereign, wherever the sovereignty might lie." This
sovereign power to grant a pardon has been recognized
B
in our Constitution in Articles 72 and 161, and also in
Sections 432 and 433 of the Code. Grant of pardon to an
accomplice under certain conditions as contemplated by
Section 306 of the Code is a variation of this very power.
The grant of pardon, whether it is under Article 161 or 72
c of the Constitution or under Sections 306, 432 and 433 is
the exercise of sovereign power."

'21. In Epuru Sudhakar v. Government of A.P. (supra),
which was also decided by a two-Judge Bench, Arijit Pasaya!,
D J. referred to Section 295 of the Government of India Act, 1935,
Articles 72 and 161 of the Constitution, 59 American
Jurisprudence (2nd Edition), Corpus Juris Secundum Vol. 67-
A, Wade Administrative Law (9th Edition), Maru Ram's case,
Kehar Singh's case and reiterated the views expressed by him
E in Prem Raj's case on the nature of the power vested in the
President and the Governor under Articles 72 and 161 of the
Constitution. In his concurring judgment, S. H. Kapadia, J (as
he then was) observed:

"Pardons, reprieves and remissions are manifestation of
F the exercise of prerogative power. These are not acts of
grace. They are a part of constitutional scheme. When a
pardon is granted, it is the determination of the ultimate
authority that public welfare will be better served by
inflicting less than what the judgment has fixed.
G
The power to grant pardons and reprieves was traditionally
a royal prerogative and was regarded as an absolute
power. At the same time, even in the earlier days, there
was a general rule that if the king is deceived, the pardon
H is void, therefore, any separation of truth or suggestion of
DEVENDER PAL SINGH BHULLAR v. STATE OF 727
N.C.T. OF DELHI [G.S. SINGHVI, J.]
falsehood vitiated the pardon. Over the years, the A
manifestation of this power got diluted.

Exercise of executive clemency is a matter of discretion
and yet subject to certain standards. It is not a matter of
privilege. It is a matter of performance of official duty. It is
8
vested in the President or the Governor, as the case may
be, not for the benefit of the convict only, but for the welfare
of the people who may insist on the performance of the
duty. This discretion, therefore, has to be exercised on
public considerations alone. The President and the
Governor are the sole judges of the sufficiency of facts and C
of the appropriateness of granting the pardons and
reprieves. However, this power is an enumerated power
in the Constitution and its limitations, if any, must be found
in the Constitution itself. Therefore, the µrinciple of
exclusive cognizance would not apply when and if the D
decision impugned is in derogation of a constitutional
provision. This is the basic working test to be applied while
granting pardons, reprieves, remissions and
commutations.
E
Granting of pardon is in no sense an overturning of a
judgment of conviction, but rather it is an executive action
that mitigates or sets aside the punishment for a crime. It
eliminates the effect of conviction without addressing the
defendant's guilt or innocence. The controlling factor in F
determining whether the exercise of prerogative power is
subject to judicial review is not its source but its subject-
matter. It can no longer be said that prerogative power is
ipso facto immune from judicial review. An undue exercise
of this power is to be deplored. Considerations of religion, G
caste or political loyalty are irrelevant and fraught with
discrimination. These are prohibited grounds. The Rule of
Law is the basis for evaluation of all decisions. The
supreme quality of the Rule of Law is fairness and legal
certainty. The principle of legality occupies a central plan
H
728 SUPREME COURT REPORTS (2013] 6 S.C.R.

A in the Rule of Law. Every prerogative has to be subject to
the Rule of Law. That rule cannot be compromised on the
grounds of political expediency. To go by such
considerations would be subversive of the fundamental
principles of the Rule of Law and it would amount to setting
B a dangerous precedent. The Rule of Law principle
comprises a requirement of "Government according to
law". The ethos of "Government according to law" requires
the prerogative to be exercised in a manner which is
consistent with the basic principle of fairness and certainty.
c Therefore, the power of executive clemency is not only for
the benefit of the convict, but while exercising such a power
the President or the Governor, as the case may be, has
to keep in mind the effect of his decision on the family of
the victims, the society as a whole and the precedent it sets
for the future.
D
The power under Article 72 as also under Article 161 of
the Constitution is of the widest amplitude and envisages
myriad kinds and categories of cases with facts and
situations varying from case to case. The exercise of power
E depends upon the facts and circumstances of each case
and the necessity or justification for exercise of that power
has to be judged from case to case. It is important to bear
in mind that every aspect of the exercise of the power
under Article 72 as also under Article 161 does not fall in
F the judicial domain. In certain cases, a particular aspect
may not be justiciable. However, even in such cases there
has to exist requisite material on the basis of which the
power is exercised under Article 72 or under Article 161
of the Constitution, as the case may be. In the
G circumstances, one cannot draw the guidelines for
regulating the exercise of the power."

22. The propositions which can be culled out from the ratio
of the above noted judgments are:

H (i) the power vested in the President under Article 72 and
DEVENDER PAL SINGH BHULLAR v. STATE OF 729
N.C.T. OF DELHI [G.S. SINGHVI, J.]
the Governor under Article 161 of the Constitution is A
manifestation of prerogative of the State. It is neither a matter
of grace nor a matter of privilege, but is an important
constitutional responsibility to be discharged by the highest
executive keeping in view the considerations of larger public
interest and welfare of the people. B

(ii) while exercising power under Article 72, the President
is required to act on the aid and advice of the Council of
Ministers. In tendering its advice to the President, the Central
Government is duty bound to objectively place the case of the C
convict with a clear indication about the nature and magnitude
of the crime committed by him, its impact on the society and
all incriminating and extenuating circumstances. The same is
true about the State Government, which is required to give
advice to the Governor to enable him to exercise power under
Article 161 of the Constitution. On receipt of the advice of the D
Government, the President or the Governor, as the case may
be, has to take a final decision in the matter. Although, he/she
cannot overturn the final verdict of the Court, but in appropriate
case, the President or the Governor, as the case may be, can
after scanning the record of the case, form his/her independent E
opinion whether a case is made out for grant of pardon,
reprieve, etc .. In any case, the President or the Governor, ii!S
the case may be, has to take cognizance of the relevant facts
and then decide whether a case is made out for exercise of
power under Article 72 ·or 161 of the Constitution. F

Re: Question Nos. (bl and (cl:

23. These questions merit simultaneous consideration. But,
before doing that, we may take cognizance of paragraphs I to
VII of the instructions issued by the Government of India G
regarding the procedure to be observed by the States for
dealing with the petitions for mercy from or on behalf of the
convicts under sentence of death, which are extracted below:

"INSTRUCTIONS REGARDING PROCEDURE TO BE H
730 SUPREME COURT REPORTS [2013] 6 S.C.R.

A OBSERVED BY THE STATES FOR DEALING WITH
PETITIONS FOR MERCY FROM OR ON BEHALF OF
CONVICTS UNDER SENTENCE OF DEATll AND WITH
APPEALS TO THE SUPREME COURT AND
APPLICATIONS FOR SPECIAL LEAVE TO APPEAL TO
B THAT COURT BY SUCH CONVICTS.

A. PETITIONS FOR MERCY.

c I. A convict under sentence of death shall be allowed, if he
has not already submitted a petition for mercy, for the
preparation and submission of a petition for mercy, seven
days after, and exclusive of, the date on which the
Superintendent of Jail informs him of the dismissal by the
D Supreme Court of his appeal or of his application for
special leave to appeal to the Supreme Court.

Provided that in cases where no appeal to the Supreme
Court has been preferred or no application for special
leave to appeal to the Supreme Court has been lodged,
the said period of seven days shall be computed from the
date next after the date on which the period allowed for
an appeal to the Supreme Court or for lodging an
application for special leave to appeal to the Supreme
Court expires.
F
II. If the convict submits a petition within the above period,
it shall be addressed: -

(a) in the case of States to the Governor of the State
(Sadar-i-Riyasat in the case of Jammu and Kashmir) and
G the President of India: and

(b) in the case of Union Territories to the President of India.

The execution of sentence shall in all cases be postponed
H pending receipt of their orders.
DEVENDER PAL SINGH BHULLAR v. STATE OF 731
N.C.T. OF DELHI [GS. SINGHVI, J.)
Ill The petition shall in the first instance: - A

(a) in the case of States be sent to the State Government
concerned for consideration and orders of the Governor
(Sadar-i-Riyasat in the case of Jammu and Kashmir). If
after consideration it is rejected it shall be forwarded to
B
the Secretary to the Government of India. Ministry of Home
Affairs. If it is decided to commute the sentence of death,
the petition addressed to the President of India shall be
withheld and an intimation of the fact shall be sent to the
petitioner;
c
Note:-The petition made in a case where the sentence
of death is for an offence against any law exclusively
relatable to a matter to which the executive power of the
Union extends, shall not be considered by the State
Government but shall forthwith be forwarded to the D
Secretary to the Government of India, Ministry of Home
Affairs.

(b) in the case of Union Territories, be sent to the Lieut.-
Governor/ Chief Commissioner/Administrator who shall
E
forward it to the Secretary to the Government of India,
Ministry of Home Affairs, stating that the execution has
been postponed pending the receipt of the orders of the
President of India.

IV. If the convict submits the petition after the period F
prescribed by Instruction I above, it will be within the
discretion of the Chief Commissioner or the Government
of the State concerned, as the case may be, to consider
the petition and to postpone execution pending such
consideration and also to withhold or not to withhold the G
petition addressed to the President. In the following
circumstances, however, the petition shall be forwarded
to the Secretary to the Government of India, Ministry of
Home Affairs:
H
732 SUPREME COURT REPORTS [2013] 6 S.C.R.

A (i) if the sentence of death was passed by an appellate
court on an appeal against the convict's acquittal or as a
result of an enhancement of sentence by the appellate
court, whether on its own motion or on an application for
enhancement of sentence, or
B
(ii) when there are any circumstances about the case,
which, in the opinion of the Lieut-Governor/Chief
Commissioner/Administrator or the Government of the
State concerned, as the case may be, render it desirable
that the President should have an opportunity of considering
c it, as in cases of a political character and those in which
for any special reason considerable public interest has
been aroused. When the petition is forwarded to the
Secretary to the Government of India, Ministry of Home
Affairs, the execution shall simultaneously be postponed
D pending receipt of orders of the President thereon.

V. In all cases in which a petition for mercy from a convict
under sentence of death is to be forwarded to the
Secretary to the Government of India, Ministry of Home
E Affairs, the Lieut-Governor/Chief Commissioner/
Administrator or the Government of the State concerned,
as the case may be. shall forward such petition as
expeditiously as possible along with the records of the
case and his or its observations in respect of any of the
F
grounds urged in the petition. In the case of States, the
Government of the State concerned shall, if it had
previously rejected any petition addressed to itself or the
Governor/Sadar-i-Riyasat, also forward a brief statement
of the reasons for the rejection of the previous petition or
petitions.
G
VI. Upon the receipt of the orders of the President, an
acknowledgment shall be sent to the Secretary to the
Government of India. Ministry of Home Affairs, immediately
in the manner hereinafter provided. In the case of Assam
H and the Andaman and Nicobar Islands, all orders will be
DEVENDER PAL SINGH BHULLAR v. STATE OF 733
N.C.T. OF DELHI [G.S. SINGHVI, J.]
communicated by telegram and the receipt thereof shall A
be acknowledged by telegram. In the case of other States
and Union Territories, if the petition is rejected, the orders
will be communicated by express letter and receipt thereof
shall be acknowledged by express letter. Orders
commuting the death sentence will be communicated by B
express letter in the case of Delhi and by telegram in all
other cases and receipt thereof shall be acknowledged by
express letter or telegram, as the case may be.

VII. A petition submitted by a convict shall be withheld by
the Lieut-Governor/Chief Commissioner/Administrator or C
the Government of the State concerned, as the case may
be, if a petition containing a similar prayer has already
been submitted to the President. When a petition is so
withheld the petitioner shall be informed of the fact and of
the reason for withholding it." D

24. The above reproduced instructions give a clear
indication of the seriousness with which the authorities
entrusted with the task of accepting the mercy petitions are
required to process the same without any delay. E

25. The question whether delay in the judicial process
constitutes a ground for alteration of cleath sentence into life
imprisonment has been considered in several cases. In Piare
Dusadh v. Emperor AIR 1944 FC 1, the Federal Court of India
F
altered the death sentence into one of transportation for life on
the ground that the appellant had been awaiting the execution
of death sentence for over one year. While vacating the death
penalty, similar approach was adopted in Vivian Rodrick's
case, Neiti Sreeramulu's case, Ediga Anamma's case, State
of U.P. v. Suresh (supra), State of U.P. v. Lalla Singh (1978) G
1 SCC 142, Bhagwan Bux Singh v. State of U.P. (1978) 1
SCC 214, Sadhu Singh v. State of U.P. (supra) and State of
U.P. v. Sahai (1982) 1 SCC 352.

26. In Ediga Anamma's case, the appellant was found H
734 SUPREME COURT REPORTS [2013] 6 S.C.R.

A guilty of killing his own wife and a two year old child. After
approving the reasons recorded by the trial Court and the High
Court for holding the appellant guilty, this Court referred to
Section 354(3} Cr.P.C., which casts a duty upon the Court to
give special reasons for awarding death penalty as also the
B judgment in Jagmohan Singh's case and observed:

"Jagmohan Singh has adjudged capital sentence
constitutional and whatever our view of the social invalidity
of the death penalty, personal predilections must bow to
·' c the law as by this Court declared, adopting the noble words
of Justice Stanley Mosk of California uttered in a death
sentence case: "As a judge, I am bound to the law as I find
it to be and not as I fervently wish it to be". (The Yale Law
Journal, Vol. 82, No. 6, p. 1138.}

D xxxx )()()()( )()()()(

Where the murderer is too young or too old the clemency
of penal justice helps him. Where the offender suffers from
socio-economic, psychic or penal compulsions insufficient
to attract a legal exception or to downgrade the crime into
E
a lesser one, judicial commutation is permissible. Other
general social pressures, warranting judicial notice, with ·
an extenuating impact may, in special cases, induce the
lesser penalty. Extraordinary features in the judicial
process, such as that the death sentence has hung over
F
the head of the culprit excruciatingly long, may persuade
the Court to be compassionate. Likewise, if others involved
in the crime and similarly situated have received the
benefit of life imprisonment or if the offence is only
constructive, being under Section 302, read with Section
G 149, or again the accused has acted suddenly under
another's instigation, without premeditation, perhaps the
Court may humanly opt for life, even like where a just cause
or real suspicion of wifely infidelity pushed the criminal into
the crime. On the other hand. the weapons used and the
H manner of their use, the horrendous features of the crime
DEVENDER PAL SINGH BHULLAR v. STATE OF 735
N.C.T. OF DELHI [G.S. SINGHVI, J.]
and hapless. helpless state of the victim. and the like. steel A,
the heart of the law for a sterner sentence. We cannot
obviously feed into a judicial computer all such situations
since they are astrological imponderables in an imperfect
and undulating society. A legal policy on life or death cannot
'be left for ad hoc mood or individual predilection and so B
we have sought to objectify to the extent possible,
abandoning retributive ruthlessness, amending the
deterrent creed and accenting the trend against the
extreme and irrevocable penalty of putting out life."

(emphasis supplied) C

27. In T.V. Vatheeswaran's case, on which learned senior
counsel for the petitioner and the learned Amicus Shri Ram
Jethmalani placed heavy reliance, the two Judge Bench
considered whether the appellant, who was convicted for an D
offence of murder and sentenced to death in January, 1975 <!nd
was kept in solitary confinement for about 8 years was entitled
to commutation of death sentence. The Court prefaced
consideration of the appellant's plea by making the following
observations: E

"Let us examine his claim. First, let us get rid of the
cobwebs of prejudice. Sure, the murders were wicked and
diabolic. The appellant and his friends showed no mercy
to their victims Why should any mercy be shown to them?
But, gently, we must remind ourselves it is not Shylock's F
pound of flesh that we seek, nor a chilling of the human
spirit. It is justice to the killer too and not justice untempered
by mercy that we dispense. Of course, we cannot refuse
to pass the sentence of death where the circumstances cry
for it. But, the question is whether in a case where after G
the sentence of death is given, the accused person is
made to undergo inhuman and degrading punishment or
where the execution of the sentence is endlessly delayed
and the accused is made to suffer the most excruciating
agony and anguish, is it not open to a Court of appeal or H
736 SUPREME COURT REPORTS [2013] 6 S.C.R.

A a court exercising writ jurisdiction, in an appropriate
proceeding, to take note of the circumstance when it is
brought to its notice and give relief where necessary?"

The Bench then referred to the judgments noted hereinabove,
B the minority view of Lord Scarman and Lord Brightman in Noel
Riley v. Attorney General (supra) and observed:

"While we entirely agree with Lord Scarman and Lord
Brightman about the dehumanising effect of prolonged
delay after the sentence of death, we enter a little caveat,
C but only that we may go further. We think that the cause of
the delay is immaterial when the sentence is death. Be the
cause for the delay, the time necessary for appeal and
consideration of reprieve or some other cause for which
the accused himself may be responsible, it would not alter
D the dehumanising character of the delay."

After noticing some more judgments, the Bench observed:

"So, what do we have now? Articles 14, 19 and 21 are not
mutually exclusive. They sustain, strengthen and nourish
E each other. They are available to prisoners as well as free
men. Prison walls do not keep out Fundamental Rights. A
person under sentence of death may also claim
Fundamental Rights. The fiat of Article 21. as explained.
is that any procedure which deprives a person of his life
F or liberty must be just. fair and reasonable. Just. fair and
reasonable procedure implies a right to free legal services
where he cannot avail them. It implies a right to a speedy
trial. It implies humane conditions of detention. preventive
or punitive. "Procedure established by law'' does not end
G with the pronouncement of sentence: it includes the
carrving out of sentence. That is as far as we have gone
so far. It seems to us but a short step. but a step in the
right direction. to hold that prolonged detention to await the
execution of a sentence of death is an unjust. unfair and
H unreasonable procedure and the only way to undo the
DEVENDER PAL SINGH BHULLAR v. STATE OF 737
N.C.T. OF DELHI [G.S. SINGHVI, J.)
wrong is to quash the sentence of death. In the United A
States of America where the right to a speedy trial is a
Constitutionally guaranteed right, the denial of a speedy
trial has been held to entitle an accused person to the
dismissal of the indictment or the vacation of the sentence
(vide Strunk v. United States). Analogy of American law B
is not permissible, but interpreting our Constitution sui
generis, as we are bound to do, we find no impediment in
holding that the dehumanising factor of prolonged delay in
the execution of a sentence of death has the Constitutional
implication of depriving a person of his life in an unjust, c
unfair and unreasonable way as to offend the Constitutional
guarantee that no person shall be deprived of his life or
personal liberty except according to procedure established
by law. The appropriate relief in such a case is to vacate
the sentence of death." D
(emphasis supplied)

28. In K.P. Mohd.'s case, a Bench headed by the then Chief
Justice Y.V. Chandrachud noted that the petitioner who was
sentenced to death had filed a petition under Article 72 of the E
Constitution in 1978 but the same was not decided for the next
four and half years. The writ petition filed by the petitioner for
commutation of death sentence into life imprisonment was
adjourned by the Court from time to time with the hope that the
Government will expedite its process and dispose of the mercy F
petition at an early date. Notwithstanding this, the mercy petition
was not decided. After waiting for a sufficiently long period, the
Court commuted the death sentence into life imprisonment by
recording the following observations:

".... It is perhaps time for accepting a self-imposed rule of G
discipline that mercy petitions shall be disposed of within,
say, three months. These delays are gradually creating
serious social problems by driving the courts to reduce
death sentences even in those rarest of rare cases in
which, on the most careful, dispassionate and humane H
738 SUPREME COURT REPORTS (2013] 6 S.C.R.

A considerations death sentence was found to be the only
sentence called for. The expectation of persons
condemned to death that they still have a chance to live is
surely not Qf lesser, social significance than the expectation
of contestants to an election petition that they will one day
B vote on the passing of a bill.

Considering all the circumstances of the case, including
those concerning the background and motivation of the
crime in the instant case, we are of the opinion that the
death sentence imposed upon the petitioner should be set
c aside and in its place the sentence of life imprisonment
should be passed. We direct accordingly. It is needless
to add that the death sentence imposed upon the petitioner
shall not be executed. It is however necessarv to add that
we are not setting aside the death sentence merely for the
D reason that a certain number of years have passed after
the imposition of the death sentence. We do not hold or
share the view that a sentence of death becomes
inexecutable after the lapse of any particular number of
years."
E
(emphasis supplied)

29. After 13 days, a three-Judge Bench headed by the
Chief Justice delivered the judgment titled Sher Singh v. State
F of Punjab (1983) 2 SCC 344. The petitioners in that case were
convicted under Section 302 read with Section 34 IPC and
were sentenced to death by the trial Court. The High Court
reduced the sentence imposed on one of them to life
imprisonment but upheld the sentence of death imposed on the
remaining two accused. The petitioners then challenged the
G constitutional validity of Section 302 IPC. Their petition was
dismissed by this Court. Soon thereafter, they filed writ petition
for commutation of death sentence by relying upon the judgment
in T. V. Vatheeswaran's case. The three-Judge Bench broadly
agreed with the ratio of the judgment in T. V. Vatheeswaran's
H case, but refused to lay down any hard and fast rule for
DEVENDER PAL SINGH BHULLAR v. STATE OF 739
N.C.T. OF DELHI [G.S. SINGHVI, J.]
commutation of death sentence into life imprisonment on the A
ground of delay in the Court processes. Some of the passages
of the judgment in Sher Singh's case are extracted below:

"Like our learned Brethren, we too consider that the view
expressed in this behalf by Lord Scarman and Lord
Brightman in the Privy Council decision of Noel Riley is, B
with respect, correct. The majority in that case did not
pronounce upon this matter. The minority expressed the
opinion that the jurisprudence of the civilized world has
recognized and acknowledged that prolonged delay in
executing a sentence of death can make the punishment C
when it comes inhuman and degrading: Sentence of death
is one thing; sentence of death followed by lengthy
imprisonment prior to.execution is another. The prolonged
anguish of alternating hope and despair, the agony of
uncertainty, the consequences of such suffering on the D
mental, emotional, and physical integrity and health of the
individual can render the decision to execute the sentence
of death an inhuman and degrading punishment in the
circumstances of a given case.
E
The fact that it is permissible to impose the death sentence
in appropriate cases does not, however, lead to the
conclusion that the sentence must be executed in every
case in which it is upheld, regardless of the events which
have happened since the imposition or the upholding of
F
that sentence. The inordinate delay in the execution of the
sentence is one circumstance which has to be taken into
account while deciding whether the death sentence ought
to be allowed to be executed in a given case."

(emphasis supplied) G

The area of disagreement between the two-Judge Bench, which
decided T.V. Vatheeswaran's case and the three-Judge
Bench, which decided Sher Singh's case is reflected in the
following observations made in the latter judgment: H
740 SUPREME COURT REPORTS [2013] 6 S.C.R

A "What we have said above delineates the broad area of
agreement between ourselves and our learned Brethren
who decided Vatheeswaran. We must now indicate with
precision the narrow area wherein we feel constrained to
differ from them and the reasons why. Prolonged delay in
B the execution of a death sentence is unquestionably an
important consideration for determining whether the
sentence should be allowed to be executed. But. according
to us. no hard and fast rule can be laid down as our learned
Brethren have done that "delay exceeding two years in the
execution of a sentence of death should be considered
c sufficient to entitle the person under sentence to death to
invoke Article 21 and demand the quashing of the
sentence of death". This period of two years purports to
have been fixed in Vatheeswaran after making "all
reasonable allowance for the time necessary for appeal
D and consideration of reprieve". With great respect. we find
it impossible to agree with this part of the judgment. One
has only to turn to the statistics of the disposal of cases in
the High Court and the Supreme Court to appreciate that
a period far exceeding two years is generally taken by
E those Courts together for the disposal of matters involving
even the death sentence. Very often. four or five years
elapse between the imposition of death sentence by the
Sessions Court and the disposal of the special leave
petition or an appeal by the Supreme Court in that matter.
F This is apart from the time which the President or the
Governor. as the case may be. takes to consider petitions
filed under Article 72 or Article 161 of the Constitution or
the time which the Government takes to dispose of
applications filed under Sections 432 and 433 of the Code
G of Criminal Procedure. It has been the sad experience of
this Court that no priority whatsoever is given by the
Government of India to the disposal of petitions filed to the
President under Article 72 of the Constitution. Frequent
reminders are issued by this Court for an expeditious
H disposal of such petitions but even then the petitions
DEVENDER PAL SINGH BHULLAR v. STATE OF 741
N.C.T. OF DELHI [G.S. SINGHVI, J.]
remain undisposed of for a long time. Seeing that the A
petition for reprieve or commutation is not being attended
to and no reason is forthcoming as to why the delay is
caused, this Court is driven to commute the death sentence
into life imprisonment out of a sheer sense of helplessness
and frustration. Therefore. with respect. the fixation of the B
time limit of two years does not seem to us to accord with
the common experience of the time normally consumed by
the litigative process and the proceedings before the
executive.

Apart from the fact that the rule of two years runs in the
c
teeth of common experience as regards the time generally
occupied by proceedings in the High Court, the Supreme
Court and before the executive authorities, we are of the
opinion that no absolute or unqualified rule can be laid
down that in every case in which there is a long delay in D
the'·execution of a death sentence, the sentence must be
substituted by the sentence of life imprisonment. There are
several other factors which must be taken into account
while considering the question as to whether the death
sentence should be vacated. A convict is undoubtedly E
entitled to pursue all remedies lawfully open to him to get
rid of the sentence of death imposed upon him and indeed.
there is no one. be he blind, lame, starving or suffering
from a terminal illness. who does not want to live. The
Vinoba Bhaves, who undertake the "Prayopaveshana" do F
not belong to the world of ordinary mortals. Therefore, it is
understandable that a convict sentenced to death will take
recourse to every remedy which is available to him under
the law to ask for the commutation of his sentence, even
after the death sentence is finally confirmed by this Court G
by dismissing his special leave petition or appeal. But. it
is, at least. relevant to consider whether the delay in the
execution of the death sentence is attributable to the fact
that he has resorted to a series of untenable proceedings
which have the effect of defeating the ends of justice. It is H
742 SUPREME COURT REPORTS [2013] 6 S.C.R.

A not uncommon that a series of review petitions and writ
petitions are filed in this Court to challenge judgments and
orders which have assumed finality, without any seeming
justification. Stay orders are obtained in those proceedings
and then. at the end of it all. comes the argument that there
B has been prolonged delay in implementing the judgment
or order. We believe that the Court called upon to vacate
a death sentence on the ground of delay caused in
executing that sentence must find why the delay was
caused and who is responsible for it. If this is not done.
c the law laid down by this Court will become an object of
ridicule by permitting a person to defeat it by resorting to
frivolous proceedings in order to delay its implementation.
And then. the rule of two years will become a handy tool
for defeating justice. The death sentence should not, as far
as possible, be imposed. But, in that rare and exceptional
D
class of cases wherein that sentence is upheld by this
Court, the judgment or order of this Court ought not to be
allowed to be defeated by applying any rule of thumb.

Finally, and that is no less important. the nature of the
E offence. the diverse circumstances attendant upon it. its
impact upon the contemporary society and the question
whether the motivation and pattern of the crime are such
as are likely to lead to its repetition. if the death sentence
is vacated, are matters which must enter into the verdict
F as to whether the sentence should be vacated for the
reason that its execution is delayed. The substitution of the
death sentence by a sentence of life imprisonment cannot
follow by the application of the two years' formula, as a
matter of quad erat demonstrandum."
G
(emphasis supplied)

30. In Javed Ahmed v. State of Maharashtra (supra), a
two-Judge Bench presided over by 0. Chinnappa Reddy, J.,
who had authored the judgment in T.V. Vatheeswaran's case,
H while reiterating the proposition laid down in T.V.
. DEVENDER PAL SINGH BHULLAR v. STATE OF 743
N.C.T. OF DELHI [G.S. SINGHVI, J.]
Vatheeswaran's case, the learned Judge proceeded to doubt A
the competence of the larger Bench to what he termed as
overruling of the two-Judge Bench judgment.

31. Although, the question whether delay in disposal of the
petitions filed under Articles 72 and 161 of the Constitution
B
constitutes a valid ground for commutation of sentence of death
into life imprisonment did not arise for consideration in T.V.
Vatheeswaran's case, Sher Singh's case or Javed Ahmed's
case and 'only a passing reference was made in the last
paragraph of the judgment in T.V. Vatheeswaran's case, the
conflicting opinions expressed in those cases on the Court's C
power to commute the sentence of death into life imprisonment
on the ground of delay simpliciter resulted in a reference to the
Constitution Bench in Triveniben's case which related to the
exercise of power by the President under Article 72 and by the
Governor under Article 161 of the Constitution. After hearing D
the arguments, the Constitution Bench expressed its opinion
in the following words:

"Undue long delay in execution of the sentence of death
will entitle the condemned person to approach this Court E
under Article 32 but this Court will only examine the nature
of delay caused and circumstances that ensued after
sentence was finally confirmed by the judicial process and
will have no jurisdiction to reopen the conclusions reached
by the court while finally maintaining the sentence of death.
F
This Court, however, may consider the question of
inordinate delay in the light of all circumstances of the case
to decide whether the execution of sentence should be
carried out or should be altered into imprisonment for life.
No fixed period of delay could be held to make the
sentence of death inexecutable and to this extent the G
decision in Vatheeswaran case cannot be said to lay down
the correct law and therefore to that extent stands
overruled."

(This order is reported in (1988) 4 SCC 574) H
744 SUPREME COURT REPORTS [2013] 6 S.C.R.

A 32. In paragraph 13 of the main judgment G.L. Oza, J.,
noted the argument made on behalf of the petitioners that delay
causes immense mental torture to a condemned prisoner and
observed:

" ............. It is no doubt true that sometimes in these
B procedures some time is taken and sometimes even long
time is spent. May be for unavoidable circumstances and
sometimes even at the instance of the accused but it was
contended and rightly so that all this delay up to the final
judicial process is taken care of while the judgment is finally
c pronounced and it could not be doubted that in number of
cases considering (sic) the time that has elapsed from the
date of the offence till the final decision has weighed with
the courts and lesser sentence awarded only on this
account."
D
The learned Judge then observed that while considering
the question of delay after the final verdict is pronounced, the
time spent on petitions for review and repeated mercy petitions
at the instance of the convicted person himself shall not be
E considered and the only delay which would be material for
consideration will be the delay in disposal of the mercy petitions
or dell!>' occurring at the instance of the executive.

33. While rejecting the argument that keeping a
condemned prisoner in jail amounts to double jeopardy, Oza,
F J., referred to Section 366 Cr.P.C. and held that when a person
is committed to jail awaiting the execution of the sentence of
death, it is not an imprisonment but the prisoner has to be kept
secured till the sentence awarded by the Court is executed. The
learned Judge also rejected the argument that delay in
G execution of the sentence entitles a prisoner to approach this
Court because his right under Article 21 is infringed and
observed:

" ........... the only jurisdiction which could be sought to be
exercised by a prisoner for infringement of his rights can
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 745
N.C.T. OF DELHI [G.S. SINGHVI, J.)
be to challenge the subsequent events after the final A
judicial verdict is pronounced and it is because of this that
on the ground of long or inordinate delay a condemned
prisoner could approach this Court and that is what has
consistently been held by this Court. But it will not be open
to this Court in exercise of jurisdiction under Article 32 to B
go behind or to examine the final verdict reached by a
competent court convicting and sentencing the condemned
prisoner and even while considering the circumstances in
order to reach a conclusion as to whether the inordinate
delay coupled with subsequent circumstances could be c
held to be sufficient for coming to a conclusion that
execution of the sentence of death will not be just and
proper. The nature of the offence, circumstances in which
the offence was committed will have to be taken as found
by the competent court while finally passing the verdict. It 0
may also be open to the court to examine or consider any
circumstances after the final verdict was pronounced if it
is considered relevant.. .......... ."
34. K. Jagannatha Shelly, J., who delivered a concurring
opinion referred to the jurisprudential development in other E
countries on the issue of execution of the sentence of death and
observed:

"Under Article 72 of the Constitution, the President shall
have the power to "grant pardons, reprieves, respites or
F
remissions of punishment or to suspend, remit or commute
the sentence of any person convicted of any offence".
Under Article 161 of the Constitution, similar is the power
of the Governor to give relief to any person convicted of
any offence against any law relating to a matter to which
the executive power of the State extends. The time taken G
by the executive for disposal of mercy petitions may
depend upon the nature of the case and the scope of
enquiry to be made. It may also depend upon the number
of mercy petitions submitted by or on behalf of the
accused. The court, therefore. cannot prescribe a time- H
746 SUPREME COURT REPORTS [2013] 6 S.C.R.

A limit for disposal of even for mercy petitions.

It is, however, necessary to point out that Article 21 is
relevant at all stages. This Court has emphasised that "the
speedy trial in criminal cases though not a specific
fundamental right, is implicit in the broad sweep and
B
content of Article 21 ". Speedy trial is a part of one's
fundamental right to life and liberty. This principle, in my
opinion, is no less important for disposal of mercy petition.
It has been universally recognised that a cof\(lemned
person has to suffer a degree of mental torture even
c though there is no physical mistreatment and no primitive
torture. He may be provided with amenities of ordinary
inmates in the prison as stated in Sunil Batra v. Delhi
Admn., but nobody could succeed in giving him peace of
mind.
0
Chila Chinta Dwayoormadhya,

Chinta Taira Gariyasi,

Chila Dahati Nirjivam,
E
Chinta Oahati Sajeevakam.

As between funeral fire and mental worry, it is the latter
which is more devastating, for, funeral fire burns only the
dead body while the mental worry burns the living one. This
F
mental torment may become acute when the judicial verdict
is finally set against the accused. Earlier to it, there is every
reason for him to hope for acquittal. That hope is
extinguished after the final verdict. If, therefore, there is
inordinate delay in execution, the condemned prisoner is
G entitled to come to the court requesting to examine whether
it is just and fair to allow the sentence of death to be
executed .

....................................................... The court while examining
H the matter, for the reasons already stated, cannot take into
DEVENDER PAL SINGH BHULLAR v. STATE OF 747
N.C.T. OF DELHI [G.S. SINGHVI, J.]
account the time utilised in the judicial proceedings up to A
the final verdict. The court also cannot take into
consideration the time taken for disposal of any petition
filed by or on behalf of the accused either under Article 226
or under Article 32 of the Constitution after the final
judgment affirming the conviction and sentence. The court B
may only consider whether there was undue long delay in
disposing of mercy petition ; whether the State was guilty
of dilatory conduct and whether the delay was for no
reason at all. The inordinate delay, may be a significant
factor, but that by itself cannot render the execution c
unconstitutional. Nor it can be divorced from the dastardly
and diabolical circumstances of the crime itself......... "

(emphasis supplied)

35. In Madhu Mehta v. Union of India (supra), this Court D
commuted the death sentence awarded to one Gyasi Ram, who
had killed a Government servant, namely, Bhagwan Singh
(Amin), who had attached his property for recovery of arrears
of land revenue. After disposal of the criminal appeal by this
Court, the wife of the convict filed a mercy petition in 1981. The E
same remained pending for 8 years. This Court considered the
writ petition filed by the petitioner Madhu Mehta, who was the
national convener of Hindustani Andolan, referred to the
judgments in T. V. Vatheeswaran's case, Sher Singh's case and
Triveniben's case and held that in the absence of sufficient F
explanation for the inordinate delay in disposal of the mercy
petition, the death sentence should be converted into life
imprisonment.

36. The facts of Daya Singh's case were that the petitioner
had been convicted and sentenced to death for murdering G
Sardar Pratap Singh Kairon. The sentence was confirmed by
the High Court and the special leave petition was dismissed
by this Court. After rejection of the review petition, he filed
mercy petitions before the Governor and the President of India,
which were also rejected. The writ petition filed by his brother H
748 SUPREME COURT REPORTS [2013] 6 S.C.R.

A Lal Singh was dismissed along with Triveniben's case.
Thereafter, he filed another mercy petition before the Governor
of Haryana in November, 1988. The matter remained pending
for next two years. Finally, he sent a letter from Alipore Central
Jail, Calcutta to the Registry of this Court for commutation of
B the sentence of death into life imprisonment. This Court took
cognizance of the fact that the petitioner was in jail since 1972
and substituted the sentence of imprisonment for life in place
of the death sentence.

37. The judgments of other jurisdictions, i.e., Riley v.
C Attorney General of Jamaica, which has been cited in Rajendra
Prasad's case, Ediga Anamma's case, T.V. Vatheeswaran's
case and Sher Singh's case, as also the judgment in Pratt v.
Attorney General of Jamaica, which has been referred to with
approval in T.V. Vatheeswaran's case do not provide any
D assistance in deciding the questions framed by us. The
principle laid down in those cases is that delay in executing a
sentence of death makes the punishment inhuman and
degrading and the prisoner is entitled to seek intervention of
the Court for release on the ground that there was no explanation
E for inordinate delay. Similarly, the study conducted by Roger
Hood and Carolyn Hoyle of the University of Oxford, which has
been published with the title "The Death Penalty - A Worldwide
Perspective" does not advance the cause of the petitioner.

F 38. In the light of the above, we shall now consider the
argument of Shri K.T.S. Tulsi, learned senior counsel for the
petitioner, and Shri Ram Jethmalani and Shri Andhyarujina,
Senior Advocates,. who assisted the Court as Amicus, that long
delay of 8 years in disposal of the petition filed under Article
G 72 should be treated as sufficient for commutation of the
sentence of death into life imprisonment, more so, because of
prolonged detention, the petitioner has become mentally sick.
The thrust of the argument of the learned senior counsel is that
inordinate delay in disposal of mercy petition has rendered the
sentence of death cruel, inhuman and degrading and this is
H
DEVENDER PAL SINGH BHULLAR v. STATE OF 749
N.C.T. OF DELHI [G.S. SINGHVI, J.)
nothing short of another punishment inflicted upon the A
condemned prisoner.

39. Though the argument appears attractive, on a deeper
consideration of all the facts, we are convinced that the present
case is not a fit one for exercise of the power of judicial review B
for quashing the decision taken by the President not to
commute the sentence of death imposed on the petitioner.
Time and again, (Machhi Singh's case, Ediga Anamma's case,
Sher Singh's case and Triveniben's case), it has been held that
while imposing punishment for murder and similar type of
offences, the Court is not only entitled, but is duty bound to take C
into consideration the nature of the crime, the motive for
commission of the crime, the magnitude of the crime and its
impact on the society, the nature of weapon used for
commission of the crime, etc.. If the murder is committed in an
extremely brutal or dastardly manner, which gives rise to intense D
and extreme indignation in the community, the Court may be
fully justified in awarding the death penalty. If the murder is
committed. by burning the bride for the sake of money or
satisfaction of other kinds of greed, there will be ample
justification for awarding the death penalty. If the enormity of the E
· crime is such that a large number of innocent people are killed
without rhyme or reason, then too, award of extreme penalty of
death will be justified: All these factors hiwe tc be taken into
consideration by the President or the Governor, as the case
may be, while deciding a petition filed under Article 72 or 161 F
of the Constitution and the exercise of power by the President
or the Governor, as the case may be, not to entertain the prayer
for mercy in such cases cannot be characterized as arbitrafy
or unreasonable and the Court cannot exercise power of judicial
review only on the ground of undue delay. G
40. We are also of the view that the rule enunciated in Sher
Singh's case, Triveniben's case and some other judgments that
long delay may be one of the grounds for commutation of the
sentence of death into life imprisonment cannot be invoked in
cases where a person is convicted for offence under TADA or
H
750 SUPREME COURT REPORTS [2013] 6 S.C.R.

A similar statutes. Such cases stand on an altogether different
plane and cannot be compared with murders committed due
to personal animosity or over property and personal disputes.
The seriousness of the crimes committed by the terrorists can
be gauged from the fact that many hundred innocent civilians
B and men in uniform have lost their lives. At times, their objective
is to annihilate their rivals including the political opponents. They
use bullets, bombs and other weapons of mass killing for
achieving their perverted political and other goals or wage war
against the State. While doing so, they do not show any respect
c for human lives. Before killing the victims, they do not think even
for a second about the parents, wives, children and other near
and dear ones of the victims. The families of those killed suffer
the agony for their entire life, apart from financial and other
losses. It is paradoxical that the people who do not show any
mercy or compassion for others plead for mercy and project
0
delay in disposal of the petition filed under Article 72 or 161 of
the Constitution as a ground for commutation of the sentence
of death. Many others join the bandwagon to espouse the cause
of terrorists involved in gruesome killing and mass murder of
E innocent civilians and raise the bogey of human rights.

Question No.!dl:

41. While examining challenge to the decision taken by the
President under Article 72 or the Governor under Article 161
F of the Constitution, as the case may be, the Court's power of
judicial review of such decision is very limited. The Court can
neither sit in appeal nor exercise the power of review, but can
interfere if it is found that the decision has been taken without
application of mind to the relevant factors or the same is
G founded on the extraneous or irrelevant considerations or is
vitiated due to malafides or patent arbitrariness - Maru Ram
.v. Union of India, (1981) 1 SCC 107, Kehar Singh v. Union
of India (1989) 1 SCC 204, Swaran Singh v. State of U.P.
(1998) 4 SCC 75, Satpal v. State of Haryana (2000) 5 SCC
H 170, Bikas Chatterjee v. Union of India (2004) 7 SCC 634,
DEVENDER PAL SINGH BHULLAR v. STATE OF 751
N.C.T. OF DELHI [GS. SINGHVI, J.]
Epuru Sudhakar v. Government of A.P. (2006) 8 SCC 161 A
and Narayan Dutt v. State of Punjab (2011) 4 SCC 353.

42. So far as the petitioner is concerned, he was convicted
for killing 9 innocent persons and injuring 17 others. The
designated Court found that the petitioner and other members B
of Khalistan Liberation Front, namely, Kuldeep, Sukhdev Singh,
Hamek and Daya Singh Lahoria were responsible for the blast.
Their aim was to assassinate Shri M.S. Bitta, who was lucky
and escaped with minor injuries. While upholding the judgmenf
of the designated Court, the majority of this Court referred to C
the judgments in Bachan Singh's case and observed:

"From Bachan Singh v. State of Punjab and Machhi
Singh v. State of Punjab the principle culled out is that
when the collective conscience of the community is so
shocked, that it will expect the holders of the judicial power D
centre to inflict death penalty irrespective of their persopal
opinion as regards desirability or otherwise of retainfr1g
death penalty, the same can be awarded. It was observed:

The community may entertain such sentiment in the E
following circumstances:

(1) 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. F

(2) When the murder is committed for a motive which
evinces total depravity and meanness; e.g. murder by
hired assassin for money or reward; or cold-blooded
murder for gains of a person vis-a-vis whom the murderer G
is in a dominating position or in a position of trust; or
murder is committed in the course for betrayal of the
motherland.

(3) When murder of a member of a Scheduled Caste or
H
752 SUPREME COURT REPORTS [2013] 6 S.C.R.

A minority community etc. is committed not for personal
reasons but in circumstances which arouse social wrath;
or in cases of 'bride burning' or 'dowry deaths' or when
murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman
B on account of infatuation.

(4) 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.
c
(5) When the victim of murder is an innocent child, or a
helpless woman or old or infirm person or a person vis-a-
vis whom the murderer is in a dominating position, or a
public figure generally loved and respected by the
D community.

If upon taking an overall global view of all the
circumstances in the light of the aforesaid propositions and
taking into account the answers to the questions posed by
way of the test for the rarest of rare cases, the
E
circumstances of the case are such that death sentence
is warranted, the court would proceed to do so."

43. The finding recorded by the majority on the issue of
the petitioner's guilt is conclusive and, as held in Trivenjben's
F case and other cases, while deciding the issue whether the
sentence of death awarded to the accused should be converted
into life imprisonment, the Court cannot review such finding.

44. It is true that there was considerable delay in disposal
G of the petition filed by the petitioner but, keeping in view the
peculiar facts of the case, we are convinced that there is no
valid ground to interfere with the ultimate decision taken by the
President not to commute the sentence of death awarded to
the petitioner into life imprisonment. We can take judicial notice
H of the fact that a substantial portion of the delay can well-nigh
DEVENDER PAL SINGH BHULLAR v. STATE OF 753
N.C.T. OF DELHI [G.S. SINGHVI, J.]
be attributed to the unending spate of the petitions on behalf A
of the petitioner by various persons to which reference has
been made hereinabove.

45. On their part, the Government of NCT of Delhi and the
Central Government had made their respective B
recommendations within a period of just over two years. The
files produced before the Court show that the concerned
Ministries had, after threadbare examination of the factors like
the nature, magnitude and intensity of crime committed by the
petitioner, the findings recorded by the designated Court and C
this Court as also the plea put forward by the petitioner and his
supporters recommended that no clemency should be shown
to the person found guilty of killing 9 innocent persons and
irijuring' 17 others by using 40 kgs. ROX. While making the
recommeridation, the Government had also considered the
impact of such crimes on the public at large. Unfortunately, the D
. petition filed by the petitioner remained pending with the
President for almost 6 years, i.e., between May 2005 and May
2011. During this period, immense pressure was brought upon
the Government in the form of representations made by various
political and non-political functionaries, organizations and E
several individuals from other countries. This appears to be one
of the reasons why the file remained pending in the President's
Secretariat and no effort was made for deciding the petitioner's
case. The figures made available through RTI inquiry reveal that
during the particular period, a large number of mercy petitions F
remained pending with the President giving rise to unwarranted
speculations. On its part, the Ministry of Home Affairs also
failed to take appropriate steps for reminding the President's
Secretariat about the dire necessity of the disposal of the
pending petitions. What was done in April and May, 2011 could G
have been done in 2005 itself and that would have avoided
unnecessary controversy. Be that as it may, we are of the
considered view that delay in disposal of the petition filed by
the petitioner under Article 72 does not justify review of the
. decision taken by the President in May 2011 not to entertain H
754 SUPREME COURT REPORTS [2013] 6 S.C.R.

A his plea for clemency.

46. Though the documents produced by Shri K.T.S. Tulsi
do give an indication that on account of prolonged detention in
jail after his conviction and sentence to death, the petitioner has
suffered physically and mentally, the same cannot be relied
8
upon for recording a finding that the petitioner's mental health
has deteriorated to such an extent that the sentence awarded
to him cannot be executed.

47. Before parting with the judgment, we consider it
C necessary to take cognizance of a rather disturbing
phenomena. The statistics produced by the learned Additional
Solicitor General show that between 1950 and 2009, over 300
mercy petitions were filed of which 214 were accepted by the
President and the sentence of death was commuted into life
D imprisonment. 69 petitions were rejected by the President. The
result of one petition is obscure. However, about 18 petitions
filed between 1999 and 2011 remained pending for a period
ranging from 1 year to 13 years. A chart showing the details of
such petitions is annexed with the Judgment as Schedule 'A'.
E The particulars contained in Schedule 'A' give an impression
that the Government and the President's Secretariat have not
dealt with these petitions with requisite seriousness. We hope
and trust that in future such petitions will be disposed of without
unreasonable delay.
F 48. For the reasons stated above, we hold that the
petitioners have failed to make out a case for invalidation of
the exercise of power by the President under Article 72 of the
Constitution not to accept the prayer for commutation of the
sentence of death into life imprisonment. The writ petitions are
G accordingly dismissed.

K.K.T. Writ Petitions dismissed.
DEVENDER PAL SINGH BHULLAR v. STATE OF 755
N.C.T. OF DELHI [G.S. SINGHVI, J.]
SCHEDULE'A' A

Details of Mercy Petitions filed between 2009 and 2011, which
remained pending till 12.5.2011.

s. Name of convicts Date of Date Date Rejected/ Period of
No. Supreme Mercy Mercy Commuted1 Pendency B
Court Petition Petition Pendency
Judgment receiv- decide
ed ed
by by the
MHA Presi-
dent
c
1. Dharam Pal 18.03.1999 1999 Pending 13 years
2. Sheikh Meeran, 21.06.1999 2000 Pending 12 years
Selvam and 05.07.1999
Radhakrishnan (Review)
3. Suresh and Ramji 03.02.2001 2002 Pending 10 years D
4. Om Prakash 04.03.2003 2003 Pending 9 years
5. Lalila Doom 20.02.2004 2004 Pending 8 years
and Shivlal
6. Praveen Kumar 25.10.2003 2004 Pending 8 years E
7. Madaiahand 29.01.2004 2004 Pending 8 years
Bilavandra
8. Karan Singh and 19.07.2005 2005 Pending 7 years
Kunwar Bahadur
Singh F

9. Jafar Ali 04.05.2004 2006 Pending 6 years
10. Mohd. Afzal Guru 08.04.2005 2006 Pending 6 years
11. Bandu Baburao 07.10.2006 2007 Pending 5 years
Tidake G
12. Gurmeet Singh 28.09.2005 2007 Pending 5 years
13. Saibanna Ningappa 21.04.2005 2007 Pending 5. years
Natikar
H
756 SUPREME' e'OURT REPORTS [2013] 6 S.C.R..

A 14. Satish 02.08.2005 2007 Pending 5 years
15. Sonia and Sanjeev 2007 Pending 5 years
16. Bantu 23.07.2008 2009 Pending 3 years
17. Prajeet Kumar 2011 Pending 1 year
B '
18. Sunder Singh 2011 Pending 1 year