REMDEO CHAUHAN @ RAJNATH CHAUHANversusBANI KANT DAS AND ORS.

      . .
                 [2010] 15 (ADDL.) S.C.R. 957 -


        REMDEO CHAUHAN @ RAJNATH CHAUHAN                           A
                           ··~   v.
                 BANI KANT DAS AND ORS.
             Review Petition (C) No. 1378 of 2009
                                IN
               Writ Petition (C) No. 457 of 2005                   8

                     NOVEMBER 19, 2010

    [AFTAB ALAM AND ASOK KUMAR GANGULY, JJ.]

      Constitution of India, 1950 - Article~ 137 and 145 -         C
 Review - Scope of, by Supreme Court - Discussed -
 Supreme Court Rules, 1966- Part VIII, Order XL- Code of
 Civil Procedure, 1908 - Order XL VII, Rule 1.

         Protection of Human Rights Act, 1993- ss. 2(d), 3 and 0
    12 ... Jurisdiction of NHRC - Held: The NHRC has been
   constituted to inquire into cases of violation of and for
   protection and promotion of human rights - This power is an
   extensive one - Such action includes inquiring into cases
   where a party has been denied the protection of any law to E
   which he is entitled, whether by a private party, a public
   institution, the government or even the Courts of law -
   Definition of 'human rights' in the 1993 Act has been
   designedly kept very broad to encompass within it all the
   rights relating to life, liberty, equality and dignity of the
                                                                    F
   individual guaranteed by the Constitution or embodied in the
   International Covenants and enforceable by Courts in India
. - On facts, from its order, it is revealed that NHRC was aware
   that a review petition was filed against the judgment of this
   Court, in addition to a mercy petition filed before the Governor
   of Assam - NHRC did not commit any illegality by taking into G
  .consideration the article written by a Law Professor and then
   making a mere recommendation to the Governor, for
   considering the petitioner's plea for commutation - In doing
                                                                    ...
                               957   .                             Hj
    958   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A so, NHRC acted within its jurisdiction - Universal Declaration
  of Human Rights (UDHR) adopted by the General Assembly
  of the United Nations.

         Constitution of India, 1950 - Articles 72 and 161 - Rights
8   of the petitioner to seek commutation - Scope of judicial
    review in respect of exercise of power by the Governor under
    Article 161, or by the President under Article 72 - Discussed
    - Held: While exercising power of commuta·tion under Article
    161, the Governor is to act on the aid and advice of the
C   Council of Ministers - In view of the consistent view of two
    Constitution Benches of the Supreme Court clearly stating
    that unless the exercise of power by the Governor under
    Article 161, is ex facie perverse or is based on a rule of thumb,
    the Court should not interfere for mere non-disclosure of
    reason, the finding to the contrary in the judgment under
0   review, is vifjafed by errors apparent on the face of the record
    - In the instant case, the record shows that upon a detailed
    consideration of the relevant facts, the Governor exercised his
    power of commutation - The Governor considered, apart from
    the recommendation of NHRC, other relevant materials also
E   and, therefore, the order of the Governor is not vitiated in as
     much as it is not solely based on the recommendations of
     NHRC- Order of the Governor passed under Article 161 of
     the Constitution restored and the order of commutation of
     death sentence awarded to the petitioner to one ·of life
F    imprisonment stands.

      The trial court held the petitioner guilty of murdering
  four members of a family and that all the charges under
  Sections 302, 323, 325 and 326 of IPC against him were
G proved beyond all reasonable doubt. The trial court also
  opined that the crime fell within the category of 'rarest of
  rare cases' and the petitioner deserved death penalty.
  However, the defence raised the plea that at the time of
  commission of the crime, th e petitioner was bel ow 16
H years of age. To determine the actual age of the petitioner,
     REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                 959
                BANI KANT DAS

   Dr.'S', an Associate Professor of Forensic Medicine of       A
   Guwahati Medical College, with a team of doctors,
   examined him. The trial Court, after considering the
   medical evidence about the ·age of the petitioner along
   with the ~~idence of the father of the petitioner, came to
   the conclusion that the accused could not be below           8
   sixteen years of age at the time of alleged occurrence to
 · attract the provisions of Juvenile Ju~tice Act, 1986.

       On appeal by the petitioner, the High Court
, confirmed the conviction arid sentence of death against C
   the petitioner. The appeal from the High Court judgment
   was dismissed by a Bench of the Supreme Court and the
   death sentence was upheld. A review petition was filed
   against the abovementioned judgment of the Supreme
   Court. A two Judge Bench of this Court held that the
                                                                0
   question of conviction of the petitioner under section 302
   !PC cannot be reopened. However, considering the fact
   that the petitioner raised an important question that he
   was a juvenile at the relevant time and there is a legal
   prohibition against sentencing a juvenile, the first review
   petition was referred to a three Judges Bench. Even
   before the judgment on the review petition wa. ~
   pronounced, the petitioner filed a petition before the
 ~ Governor of Assam praying for mercy and for
   commutation of hi$ death sentence to life imprisonment.
   At about the same time when the petition for F
   commutation was pending, 'V' a Professor of the Faculty
   of Law, University of Delhi, wrote a detailed article titled
   " Has a child been executed in India", whereupon, NHRC
   sent a notice to the Professor. In the meantime, the
   judgment in the review petition , as aforesaid , was G
   pronounced by this Court. Subsequently, the full
   Commission of NHRC held its proceedings, in which the
   judgment rendered in the review proceeding was
   perused . NHRC, upon considering the materials on
                                                                H.
    960 SUPREME COURT REPORTS [2010J 15 (ADDL.) S.C.R

A record, made recommendation for due consideration by
  the Governor of Assam and/or the President of India, as
  the case may be, !n the event of a mercy petition being
  filed for the purpose. Thereafter, the Governor of Assam
  commuted the death sentence of the petitioner to one of
B life imprisonment.

       Challenging the aforesaid order of the Governor, of
  Assam, the relatives of the deceased filed a writ petition
  under Article 32 of the Constitution before the Supreme
  Court which set aside th e Governor' s order of
c commutation of death sentence to life imprisonment. In
  passing that order, the Bench was of the opinion that the
  NHRC proceedings were not in line with the procedure ·
  established under the Protection of Human Rights Act,
  1993 and therefore, NHRC's recommendations were void
D and further, that the order of the Governor of Assam
  directing commutation did not indicate any reason and
  was based on the rec ommendations of NHRC, which
  itself were without jurisdiction. Thus, the writ petition was
  allowed and the order of the Governor of Assam was
E quashed and this Court directed re-consideration afresh
  of the petitioner's prayer for commutation of sentence.
  This· instant review petition is directed against the said
  order of this Court.

F      Allowing the review petition, the Court

       HELD:1. In terms of Article 137 of the Constitution,
  Rules have been framed under Article 145 of the
  Constitution and Part VIII Order XL of the said Rules deals
  with review. Order XL Rule 1 provides that in reviewing
G the judgment in a civil proceeding, the Court will follow
  the grounds in Order XLVII Rule 1 of the CPC. However,
  in case of review of criminal proceedings, no review is
  permissible except on the ground of error apparent on ,
  the face of the record. On a bare reading of the provision
H
  REMDEO CHAUHAN @ RAJNATH· CHAUHAN v.                  961
             BANI KANT DAS

of Order XL Rule 1 of the Supreme Court Rules, one may         A
get the impression that the extent of review in criminal
cases is more restricted than in civil cases. But the said
impression has been given a quietus by this Court in its
Constitution Bench• judgment in Eswara case. [Paras 30,
31, 32 and 38] [976-C-G; 978-C]                                8

    M/s Northern India Caterers (India) Ltd. v. Lieutenant
Go1vernor of Delhi 1980 (2) SCC 167; Ram Chandra Singh
v. Savitri De vi and others 2004 (12) SCC 713; - ~uthendra
Raja alias Suthenthira Raja alias San than & Ors. . v. State   C
through DSP/CBI, SIT, Chennai 1999 (9) SCC 323; P.N.
Eswara /yer and others v. Registrar, Supreme Court of India
{1980) 4 SCC 680; Girdhari La/ Gupta v. D.N. Mehta & Anr.
AIR 1971 SC 2162 - referred to.

     2.1.The NHRC was constituted urider Section 3 of          D
the Protection of Human Rights Act, 1993 for better
protection of human rights. The term 'human rig~ts' is
defined in Section 2(d) of the 1993 Act and the .f unctions
of NHRC have been set out in Section 12 of the 1993 Act.
The NHRC has been constituted to inquire into cases of         E
vioiation of and for protection and promotion of human
rights. This power is an extensive one, which should not
be narrowly viewed. [Paras 44, 45 and 46] [979-E-G; 981-
8]
                                                               F
     2.2. It must be jurisprudentially accepted that human
right is a broad concept and cannot be straitjacketed
within narrow confines. Any attempt to do so would
truncate its all-embracing scope and reach , and denude
it of its vigour and vitality. That is why, in seeking to
define human rights, the Legislature has used such a           G
wide expression in section 2(d) ·of the Act. It is also
significant to note that while defining the powers and
functions of NHRC under section 12 of the Act, the said
broad vision has been envisioned in the residuary clause
                                                               H
    962   SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.


A in Section 12(j). Therefore, it is imperative that while
  interpreting the powers and jurisdiction of NHRC, the
  Court construes section 2(d) of the 1993 Act along with
  its long title and also the Statement of Objects and
  Reasons of the said Act. [Paras 46, 47 and 48] [981-8-E]
B
         2.3. Section 120) of the 1993 Act confers on NHRC
    "such other functions as it may consider necessary for
    the promotion of human rights." It is not necessary· that
    each an~ every case relating to the violation of human
C   rights will fit squarely within the four corners of section
    12 of the 1993 Act, for invoking the jurisdiction of the
    NHRC. Human rights are not like edicts inscribed on a
    rock. They are made and unmade on the crucible of
    experience and through irreversible process of human
    struggle for freedom. They admit of a certain degree of
D   fluidity. Categories of human rights, being of infinite
    variety, are never really closed. That is why the residuary
    clause in sub-section (j) has been so widely worded to
    take care of situations not covered by sub-sections (a)
    to (i) of Section 12 of the 1993 Act. The jurisdiction of
E   NHRC thus stands enlarged by section 12(j) of the 1993
    Act, to take necessary action for the protection of human
    rights. Such action would include inquiring into cases
    where a party has been denied the protection of any law
    to which he is entitled, whether by a private party, a
F   public institution, the government or even the Courts of
    law. If a person is entitled to benefit under a particular law,
    and benefits under that law have been denied to him, it
    will amount to a violation of his human rights. [Para 52]
    [982-G-H; 983-A-C]
G
        2.4. Human rights are the basic, inherent, immutable
    and inalienable rights to which a person is entitled simply
    by virtue of his being born a human. They are such rights
    which are to be made available as a matter of right.
    Constitution and Legislations of civilized country
H
  REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                   963
             BANI KANT DAS

recognise them since they are so quintessentially part of A
every human being. That is why every democratic
country committed to rule of Law put into force
mechanisms for their enforcement and protection.
Human rights are universal in. nature. The Universal
Declaration of Human Rights (UOHR) adopted by the B
General Assembly of the United Nations on 10~h
December 1948 recognizes and requires the observance
of certain universal rights, articulated therein, to be
human rights, and these are acknowledged and accepted
as equal and inalienable and necessary for the inherent c
dignity and development of an individual. Consequently,
though the term 'human rights' itself has not been
defined in UOHR, the nature and content of human rights
can be understood from the rights enunciated therein.
Possibly considering the wide sweep of such basic
                                                               0
rights, the definition of 'human rights' in the 1993 Act has
been desi.gnedly kept very broad to encompass within it
all the rights relating to life, liberty, equality and dignity
of the individual guaranteed by the Constitution or
embodied in the International Covenants and enforceable
by Courts in India. Thus, if a person has been guaranteed E
certain rights either under the Constitution or under an
International Covenant or under a law, and he is denied
access to such a right, then it amounts to a clear violation
of his human right and NHRC has the jurisdiction to
intervene for protecting it. [Paras 53, 54 and 55] [983-G- F
H; ..984-A-C]

      2.5. The contrary finding in the judgment under
review about the absence of jurisdiction of NHRC to
make some recommendations to the Governor is thus             G
vitiated by errors apparent on the face of the record. Of
course NHRC cannot intervene in proceeding pending in
Court without its approval [Section 12(6)] as it is assymed
that Court will remedy any case of violation of human
rights. However, the assumption in the judgment under         H
   964 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

A review that there can be no violation of a person's
  human right by a judgment of this Court is possibly not .
  correct. This Court in exercise of its appellate jurisdiction
  has to deal with many judgments of High Courts and
  Tribunals in which the H!gh Courts or the Tribunals, on
B an erroneous perception of facts and law, have rendered
  decisions in breach of human rights of the parties and
  this Court corrects such errors in those judgments. The
  instances of this Court's judgment violating the human
  rights of f .e citizens may be extremely rare but it cannot
c be said that such a situation can never happen. [Paras
  56, 57 and 58] [984-0-G]

        2.6. But this Court hastens to add that NHRC cannot
  function as a parallel seat of justice to rectify or correct
  or comment upon orders passed by this Court or any
D other Courts of competent jurisdiction. For correcting an
  , '      ., a judicial proceeding, the aggrieved party has to
                       1 Jstablished gamut of the corrective
      ~ hinery of appeal, revision, review, curative petition
  and so on. [Para 64] [985-H; 986-A-B]
E
        2.7. In fact in this case the NHRC did not send any
  recommendation as long as the first review proceedings
  were pending in this court. The NHRC was keeping a
  track of the proceeding in the Court. From its order, it is
F revealed that NHRC was aware that a review petition was
  filed against the judgment of this Court in, in addition to
  a mercy petition filed before the Governor of Assam. The
  NHRC closely followed the proceedings of the review
  petition. The NHRC made its recommendations only after
G the judgment in first r-eview was passed by this Court.
  [Paras 65, 66] [986-C-D]
       2.8. NHRC, a statutory body, in a given situation, may
  have to act under the order or direction given by this
  Court in exercise of its constitutional power of judicial
H review. However, in the facts of this case, NHRC ~as not
  REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                  965
             BAN I KANT DAS
qommitted any illegality by taking into consideration the    A
article written by Professor 'V' and then making a mere
r,ecommendation to the Governor, for considering the
petitioner's plea for commutation . In doing so, NHRC
acted within its jurisdiction. [Paras 69, 70] [987 ·D·E]
                                                   .         .B
    Additional District Magistrate Jabalpur v. Shtvakant \
'Shukla (1976) 2 SCC 521 and Paramjit Kaur ·v. State of
Punjab and ·Ors. (1999) 2 SCC 131 - referred to. ·

     Liversidge v. Sir John Anderson (1942) AC 206 -
referred to.                                                 C

     3.1. In the judgment on Article 32 petition, it was
noted that the order of the Governor directing
commutation "does not indicate any reason ". After
quoting that, the impugned judgment quashed the order 0
of commutation by the Governor and directed
rec~nsideration. On review of the aforesaid reasoning, it
is found that this finding In the judgment is vitiated by
errors apparent on the face of the record. [Paras 71, 72
and 73] [987 -G-H; 988-A-B]
                                                              E
     3.2. In the instant case, the entire record relating to
exercise of power by the Governor was always available
for perusal of the Court. It is well·settled that while
exercising power of commutation under Article 161 of the
Constitution, the Governor is to act on the aid and advice F
of the Council of Ministers. From a perusal of the
materials on the file, it appears that detailed consideration
has been made in the Chief Minister's Secretariat and
notes in detail have been put up by the Chief Minister's
Secretariat, wherein the entire factual aspect of the case G
has been considered. The different judgments given in
the first review petition were part of the note, and on a
c.o nsideration of the detailed note, the Chief Minister
approved the note put up before him by the Secretary,
Judicial Department for commutation: Thereafter, the H
    966    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   matter was placed before the Governor's Secretariat with
    the entire record . The Hon ' ble Governor thereafter
    approved the proposal. Therefore, more than adequate
    reasons are available on the records of the case. It was
    open to the Bench passing the judgment under review
8   to peruse the entire record. [Paras 74, 75, 16 and 77] [988-
    B-G]

      3.3. In view of the consistent view of two Constitution
  Benches of this court clearly stating that unless the
  exercise of .power by the Governor under Article 161 , is
C ex facie perverse or is based on a rule of thumb, the
  Court should not interfere for mere non-disclosure of
  reason, the finding to the contrary in the judgment under
  review, is vitiated by errors apparent on the face of the
  record. In the instant case, a perusal of the record shows
D that upon a detailed consideration of the relevant facts,
  the Governor exercised his power of commutation. Such
  an exercise does not call for any interference. [Paras 82,
  83] [990-A-D]

E         3.4. From the perusal of the file this Court also notes
  that in passing the order, the Governor considered all the
  relevant materials, including the judgment of three ·
  Judges in the first review petition filed by the petitioner,
  as also the recommendation of NHRC. NHRC has the
F jurisdiction , in the facts of th i s case , to make its
  recommendation to the Governor to take into account the
  materials which NHRC considered. It is found that the
  Governor considered, apart from the said
  recommendation of NHRC, other relevant materials also
G and, therefore, the order of the Govern or is not vitiated
  in as much as it is not sole ly based on the
  recommendations of NHRC. [Para 84, 85] [990-0-F]
       Maru Ram v. Union of India & Ors. (1981) 1 SCC 1 07;
    Kehar Singh & Anr. v. Union of India & Anr. (1989) 1 SCC
H 204 - followed.
                                               I
    REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                    967
               ~AN I KANT DAS  .
      Epuru Sudhakar and another v. Government of A. P. & ·A
 Ors. 2006 (S) SCC 161 and G. Krishta Goud·& J. Bhoomaiah
 v. Sf(!fe of Andhra Pradesh & Ors. 09i6) 1 SCC 157; -
 referred to.

       4. As regards the other qu~stion as to whether tne
                                                                   8
  petitioner is entitled to insist on a fresh _       l ook at his
  juvenility and a fresh consideration of his rights in view
  of the changes· in the Juvenile Justice (Car-e & Protection
  of Children) _Act, 2000 by 2006 amendment, this question
  is argued for the first time in review even though it is n'ot ·
  plead~d· in the review petition as a ground for revi.ew. In C
  the Article :32 petition,· notice was served on the review
  petitioner and it was open to him to raise these p.pints in
  that p~oceeding as by that time the Juvenile Justice (Care .
  and .Protection- of .Children) A~t, 2QOO as amended by the
  2006 amendment Act had.come into force.Even though. D
  the ambi~ of the review. petition has been ~id~.oed-by this
· Court in Eswara's case, it has to follow broadly the
  pri,ncipfes of review -...inder Order XLVII Rule 1 of the Code
  of Civil Procedure. F-ollowing the discipline of Order XLVII,
  Rule 1:·or' the concept.of 'an error apparent on· the face E
  of the :record', 'this Court possi~ly cannot pronounce in
  a review petition on a question, which was open to be
  raised in the original proceeding, but was not raised. That
  apart,_t(has not at all been pleaded it) the review petition.
  For these reasons, this Court. refrains i~self from F
· pronouncing on the rights of the petitioner under Juvenile
  Justice-. (Care and Protection) Act, 2000 as · amended by
  the 2006 Amendment. If he is so advised, it is open to the
  petition_er.to agitate on his· rights u'nder.the said Act before
  the appropriate Forum and in appropriate' pr<~ceedings. G
  If such a proceeding is . initiated by .the petitioner, the
  same will be dealt' with without being impeded by any
  observation made or fi_       n ding reached in any of the
  judgments arising out of the concerned criminal case
  against the petitioner, by any Court, including this Court. H
    968 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

A [Paras 86, 87, 89 to 92] [990-G-H; 991-A-C-H]

         P.N. Eswara /yer and others v. Registrar, Supreme Court
    of India (1980) 4 SCC 680 - referred to.

       5. In the judgment which is under review in the
B second review petition, the Court held that (a) N H R C
  has no jurisdiction to interfere and make a
  recommendation, and (b) the order of .the Governor in
  commuting the sentence of death to one of life is bad in
  law as it did not disclose any reason. It is clear that both
C findings by this Court on (a) and (b) are vitiated by errors
  apparent on the face of the record.The judgment of this
  Court on Article 32 petition and which is under Review
  is set aside. The order of the Governor passed under
  Article 161 of the Constitution is restored and the order
D of commutation of death sentence awarded to the
  petitioner to one of life imprisonment stands. In the facts
  of this case, NHRC . had the jurisdiction to make the
  relevant recommendation. [Paras 42, 43, 93] [979-B-0;
  992-A-C]
E
                       Case Law Reference:
     1980 (2) sec 167          referred to       Para 24
     20o4 (12) sec 713         referred to       Para 34
F    1999 (9) sec 323          referred to       Para 35
     (1980) 4 sec 680          referred to       Para 35, 38
     AIR 1971 SC 2162          referred to       Para 37
     (1976) 2 sec 521          referred to       Para 59, 62
G
     (1942) AC 206             referred to       Para 62
     (1999) 2 sec 131          referred to       Para 67
     2006 (8) sec 161          referred to       Para 71 , 82
H
                                           ..J·
  REMDEO CHAUHAN @ RAJNA)l-\ CHAUHAN v.                                  . 969
             BAN I KANT DAS

 (1976) 1 sec 157 ·          referred to                     Para 79             A

 (1981) 1 sec 101           followed                         Para 80, 81,
                                                             82, 83
 (1989) 1 sec 204           followed                          Para 80, 81,
                                                              82,83              B

    CIVIL'ORIGINAL JURISDICTION : Review Petition (Civil)
No. 1378 of 2009

    IN
    Writ Petition (Civil) Nos. 457 of 2005.

     Colin Gonsalves, Divya Jyoti,· Jyoti Mendiratta for the
Petitioners.

     P.S. Patwalia, (A.C.), Vijay Panjwani (A.C), Riku Sharma                    D
Vartika Sahay, Keshav Ray Chaudhari (for Corporate Law
Group), ~~obha, Arun Lal for the Respondents.

    The Judgment of the Court was delivered by
                                                                                 E
    GANGULY, J. 1. This case has a chequered background.
The facts, therefore, are to be appreciated in their sequence.
                 ~




      2. A criminar case was registered against the petitioner
under section 302 \PC, on an FIR lodged by. Bani Kant Das
(first respondent), elder brother of Bhabani Charan Das (the                     F
deceased), in view of the offences committed by the petitioner
on 8.3.1992. After investigation and preparation of charge
sheet, the case was committed for trial to the Court of Sessions
and charges were framed against the petitioner under Sections
302, 323, 325 and 326 of !PC..                                                   G

     3. On 31.3.1998, the Trial Court held the petitioner guilty
of murdering four members of Bhabani Charan Das's family
and that all the charges under Sections 302, 323, 325 and 326
of \PC against him were proved beyond a\Lreasonable doubt.                       H
                                                  '   . . ....--.... -
                                                  L
    970 SUPREME COURT REPORTS [20101 15 (ADDL.) S.C.R.

A   The Trial Court also opined that the crime f~ll within the category
    of 'rarest ofrare·· cases' arid the petitioner deserved death
    penalty.

         4. However, th~ defence raised the plea that at the time
8 of commission of the crime, the petitioner was below 16 years
   of _age. To determine the actual age of the petitioner, Dr.
   Bhushan.,Chandra Roy,' Associate Professor pf For~nsic
   Medicine of Guwahati Medical College, with a team of doctors; .
   examined him on 23.12.1997. The defence examined the father
c  of the petitioner, Mr. Firato Chauhan and alsQ,placed reliance
   on the school admission register. The school register was held
   to· be unreliable, as it was not properly maintained. Further, the
  .petiti6ner"s-father estimated the petitioner's ag~,to be 19 years:
   at the time of oc~tmence of the crime. · .             ·:·    •·

D        5. Howeve·r, 'on t~·e· basi§"of the physical and radiolo.gical
  examination done of the petitioner, the doctor was' definitely of
  the ·opinion that his age was... above 20 yea(S but coutd not be
   moreJhan 21 year~ on the date of the examination. This
  examination was conducted more than 5Y2 years after the date
E ·9fcommission ofthe.crime.                   ·

      · 6. D~. Bhushar)_~handra Roy, who Was 'a prosecution
 · witness, subjected the petitioner to scientific t~sts including ·
    radiological tests. The medical opinion of Dr. Shushan Chandra
F Roy was ~ joint opinion and he consulted the doctor in the
  . Department of Radiology and Dr. Kanak Chandra Das, the
    Medical Officer on duty in the Department of Radiolqgy.        ·

   · 7. About the age of the petitioner, trial Court accepted the
G opinion of the team of doctors headed by Dr.· Shushan)
  Chandra Roy. ·                                           ·

         8. The Trial Court's finding about the age of the petitioner
    is as follows:                     ·

H
    REMDEO CHAUHAN@ RAJNATH CHAUHAN v.                          971
    BANI KANT DAS [ASOK KUMAR GANGULY, J.]

      "On the basis of the physical examination and radiological        A
      examination done on Ramdeo Chauhan alias Raj Nath
      Chauhan, they are of opinion that the age of the individual
      is above 20 years."

      9. The Trial Court, after considering the medical evidence        B
 about the age of the petitioner along with the evidence of the
 father of the petitioner, came to the following conclusion:

      "Then the accused cannot be below sixteen years of. age
      at the time of alleged occurrence to attract the provisions
      of Juvenile Justice Act, 1986 as the alleged occurrence           C·
      took place before six years."

      10. On appeal by the petitioner, the High Court, vide its
. judgment dated 1.2.1999, confirmed the conviction and
. sentence of death against the petitioner. Before the High Court       0
. the Counsel for the petitioner specifically submitted, that he was
  not challenging the finding of the Trial Court on the point of age
  of the accused-petitioner.

      11 . The appeal from the High Court judgment was                  E·
 dismissed by a Bench of this Court, comprising K.T. Thomas
 and R.P. Sethi, JJ, on 31 .7.2000 and death sentence was
 upheld. In that judgment, this court did not advert to the question
 of age of the petitioner as it was possibly not argued.

       12, A review petition (hereinafter, the first review petition)   F
 was filed against the abovementioned judgment of this Court.!
 After notice was issued, a two Judge Bench of this Court held
 that the question of conviction of the petitioner under section
 302 IPC cannot be reopened . However, considering the fact
 that the petitioner raised an important question that he was a         G
 juvenile at the relevant time and there is a legal prohibition
 against sentencing a juvenile, tl"\e first review petition was
 referred to a larger Bench comprising K.T. Thomas, R.P. Sethi
 and S.N. Phukan, JJ.
                                                                        H
    972   SUPREME COURT REPORTS [2010] 15 (AODL.) S.C.R.


A      13. In the larger Bench decision dated 10.5.2001 , Sethi,
  J., inter-alia, held- "From the evidence produced and the
  material placed before the courts below, there is not an iota of
  doubt in my mind to hold that the petitioner was not a child or
  near or about the age of being a child within the meaning of
B the Juvenile Justice Act or the Children Act."

        14. Thomas, J gave a dissenting judgment with respect to
  imposition of death sentence upon the accused. His Lordship
  observed that the Court had already held on facts that the
C petitioner had been unable to prove that he was below 16 years
  of age on the date of the crime. However, Thomas J.
  approached the question from a different angle and questioned
  whether death sentence could be awarded to a person whose
  age was not positively established by the prosecution as above
  16 years on the crucial ·date? The learned Judge opined that if
0
  the age of the petitioner could not be held to be unquestionably ·
  above 16 on the relevant date (and there was a doubt created ·
  in view of the medical report of Dr. Shushan Chandra Roy}, its
  corollary was that the lesser sentence also could not
E unquestionably be foreclosed, as per the Constitution Bench
  judgment in the case of Bachan Singh v. State of Punjab,
  [(1982) 3 SCC 24]. Thus, the learned Judge opined that the
  sentence of death be altered to one of imprisonment for life. ·

        15. Phukan, J., gave a concurring opinion with Sethi, J. and
F opined that the imposition of sentence of death could not be
  reopened on review. However, His Lordship observed that if
  any motion was made in terms of Sections 432, 433 and 433A
  of the Code of Criminal Procedure and/or Article 72 or Article
  161 of the Constitution, the same may be appropriately dealt
G with.

        16. In the words of Phukan, J., "the factors which have
    weighed with my learned Brother Mr. Justice Thomas can be
    taken note of in the context of section 432(2) of the Code."
H
   REMDEO ' CHAUHAN @ RAJNATH CHAUHAN v.                       973
   BANI KANT DAS [ASOK KUMI\_R GANGULY:, .J.]
      17. Even before the juagment on the first review petition        A
was pronounced on 10.5.2001, the petitioner had already filed
on 17.8.2000 a petition before the Governor of Assam rraying
for mercy and for commutation of his death sentence to one of
life imprisonment.
                                                                       B
      18. At about the same time when the petition for
commutation was pending, Dr. Ved Kumari, Professor of the
Facuity of Law, University of Delhi, wrote a fairly detailed article
titled "Has ·a child been executed in India?" The said article
came to be noticed by National Human Rights Commission                 c
(NHRC). Thereupon, NHRC sent a notice to Dr. Ved _Kumari.
In the meantime, the judgment in the review petition, as
aforesaid, was pronounced by this Court on 10.5.2001.

     19. On 21.5.2001, the full Commission of NHRC ,
consisting of the Chairperson, Mr. Justice J.S. Verma, as also         D
two of its judicial members, namely, Dr. Justice K. Ramaswany
and Justice Ms. Sujata
                                 "
     V. Manohar, and the other\member Sri Virendra Dayal,
held its proceedings, in which the judgment rendered in the            E
review proceeding was perused.

   20. NHRC, upon considering the materials on record,
maqe the following recomm~ndations:
                                                                       F
    ''The Commission is of the view that the above opinion of
    Thomas, J. in the judgment disposing of the review petition
    and the above quoted observations of Phukan, J. are very
    strong reasons to support the view and this is a fit case
    for commutation of the sentence of Ram Oeo Chauhan @               G
    Raj Nath Chauhan in the above case from death sentence
    to that of imprisonment for life. This Commission is of the
    considered view that the case, placing reliance on the
    views of Thomas, J. and Phukan, J., who were two of the
    three learned Judges, constituting the Bench deserves the          H
     974    SUPREME COURT REPORTS [2010]15 (ADDL.) S.C.R.


A          highest consideration by the executive authority while
           considering the question of commutation of sentence of
           the said Ram Deo Chauhan @ Raj Nath Chauhan.

           Accordingly , th is Commission makes the above
           recommendation in terms of the opinion of Thomas, J. for
 8
           due consideration by the Governor of Assam and/or the
           President of India, as the case may be, in the event of a
           mercy petition being filed for the purpose."

        21 . Thereafter, on 28.1 .2002, the Governor of Assam
 C commuted the death sentence of the petitioner to one of life
   imprisonment. The Order of the Governor runs as under:

          "The Governor of Assam after careful consideration of the
          mercy petition and other relevant records is pleased to
 o        commute the sentence of death to that of imprisonment for
        . life of the above named condemned prisoner."

            22. Challenging the aforesaid order of the Governor, of
       Assam , the relatives of the deceased filed a writ petition under
       Article 32 of the Constitution of India before this Court. In that
  E proceeding, Secretary NHRC was impleaded . However, this .
       court, by an order dated 21 .1.2009, issued notice to Prof. Ved
       Kumari, asking her to state how her complaint before NHRC
       was maintainable. Pursuant thereto, Prof. Ved Kumari
       submitted an affidavit before this Court on 3.2.2009, stating that
. F '. the Juvenile Justice (Care & Protection of Children) Act, 2000
       applied to all pending cases and was extended to all children
       who had not completed 18 years of age; and thus it would also
       be applicable to the present case.

 G       23. After hearing the matter, the Bench comprising of one
     of us passed an order on 8.5 .2009, setting aside the
     Governor's order dated 28.1.2002 of commutation of death
     sentence to life imprisonment.

         24. In passing that order, the Bench was of the opinion that
.H
     the NHRC proceedings were not in line with the procedure
                                                          '
    REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                          975
    BANI KANT DAS [AS)?K KU~AR GANGULY, J.]

 : established under the Protection of Human Ri~hts Act, 1993 A
   (hereinafter, · 'the 1993 Act' ) and ·, therefore , NHRC's
 . ~ecomm_endati ons were void. Further, the order of the Governor
 · of Assam directing commutation did not indicate any reason
· an~ was based on the recommendations of NHRC, which itself
   w~e without jurisdiction. Thus, the writ petition was allowed and B
   the order·of the Governor of Assam was quashed and this Court
   directed Je-consideration afresh of the petitioner's prayer for
   cbmmu.tation of sen~ence.          ·

      25. This instant review petition (hereinafter, the second
 review) is directed against this Court's order dated 8.5.2009. C

        26. In this second review, notice was issued by this Bench
  for formal hearing by an order dated 3rd September, 2009. One
  of the reasons for issuing notice was that one of the grounds
  put forward w~s that the judgment under review was passed .D
  without hearin·g Ram Deo Chauha~ ; 'the petitioner, and without;
  providing him leg_  al aid. However,· i:dmost at the conclusion of
  the heC:tring of this proceeding, this Court found that the
  aforesaid representation was not correct. The correct position
  was that by an. order dated 1-9th November, 2005, Mr. E
  Muralidhar ·was · appointed by_ the Registrar of this Court to
  represe"nt the petitioner. After Mr. Muralidhar, became a Judge
  of Delhi High Court, the Registrar appointed one Mr. Vijay
  Panjwani,. an advocate of this Court, to represent the review
  petWoner.:Mr. Parijwani filed a counter affidavit in the Article F
. 32 proceeding. Ho~ever, from the judgment under review, it
! do~s _not appear ttia't Mr. Panjwani appeared before the Court
  and made his submissions.

      27. He that as· it may, it is not co.rrect to say that no notice
  was given to the petitioner. Therefore, one of the grounds on          G
! which notice fo'r r~view was issued became non-existent.


     28. The question is whether this second review should be
 dismissed in view of such misleading stand havi!lg been taken
                                                                         H
                                                 ...
    976    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   by the petitioner wh ile invoking this Court's jurisdiction of
    review.

         29. On a very careful consideration of this issue, this Court
    thinks that in view of various other questions of far reaching
    importance having been raised in this second review, it may
8
    be a travesty of justice if this petition is dismissed on only the
    ground mentioned above.

          30. This Court on a contested hearing is of the opinion that
    the second review should still be entertained and decided as
C   it raises various questions of signal significance, touching the
    rights of the petitioner to seek commutation as also touching
    questions regarding the jurisdiction of the NHRC, as also
    various constitutional provisions relating to life and freedom.
    Various concerns of public law have come up for consideration
0   in this second review and in the context of these issues the
    constitutional provision of Article 137 for review of judgment and
    order of this Court may have to be examined. Article 137 of
    the Constitution provides as follows:

          "137. Review of judgments or orders by the Supreme
E
          Court: Subject to the provisions of any law made by
          Parliament or any rules made under article 145, the
          Supreme Court shall have power to review any judgment
          pronounced or order made by it.

F         31. In terms of Article 137, Rules have been framed under
    Article 145 of the Constitution and Part VIII Order XL of the said
    Rules deals with review.

          32 . Order XL Rule 1 provides that in reviewing the
G   judgment in a civil proceeding, the Court will follow the grounds
    in Order XLVII Rule 1 of the CPC. However, in case of review
    of criminal proceedings, no review is permissible except on the
    ground of error apparent on the face of the record.

          33. The extent of the review power of this Court came up
H
  REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                      977
  BANI KANT DAS [ASOK KUMAR GANGULY, J.]

for consideration in several cases. In M/s Northern India A
Caterers (India) Ltd. v. Lieutenant Governor of Delhi reported
in 1980 (2) SCC 167, a three Judge Bench of this Court
examined the scope of this power and held that if the attention
of the Court is not drawn to any material statutory provision
during the original hearing, that is a ground of review. The Court 8
also held that it may reopen its own judgment if a manifest
wrong has been done and it is necessary to pass an orde1 to
do full and effective justice.                        .

    34. In Ram Chandra Singh v. Savitri Devi and others
reported in 2004 (12) SCC 713, this Court dealing with its C
power of review held in para 19:

    "19. It is no doubt true that in appropriate cases this Court
    may pass an order ex debito justitiae by correcting
    mi~takes in the judgment but inherent power of this Court D
    can be exercised only when there does not exist any other
    provision in that behalf .. . ... n

      35. In a three Judge Bench of this Court in the case of
Suthendra Raja alias Suthenthira Raja alias Santhan & Ors. E
v. State through DSPICBI, SIT, Chennai reported in 1999 (9)
sec    323, this Court held that the scope of review in criminal
proceedings has been considerably widened in the P.N. Eswara
lyer and others v. Registrar, Supreme Court of India [1980 (4)
sec    680}. To maintain a review in a criminal case, what has F
to be considered is whether there has been a miscarriage of
justice.

     36. In this connection, this Court finds that in the Supreme
Court Rules framed under Article 145 of the Constitution, there
is a clear provision in Order XL Rule 6 of the Rules to the G
following effect:

    "6. Nothing in these Rules shalt be deemed to limit or
    otherwise affect the inherent powers of the Court to make
    su~h orders as may be necessary for the ends of justice H .
    978    SUPREME COURT REPORTS [201 0] 15 (ADDL.) S.C.R.


A         or to prevent abuse of the process of the Court."

         37. In Girdhari La/ Gupta v. D.N. Mehta & Anr. reported
    in AIR 1971 SC 2162, this Court held when the attention of this
    Court is not drawn to any particular provision of a statute, this
    court can review the decision and it is not the case of a mere
8
    mistaken judgment. (Para 16, pg 2164)

        38. On a bare reading of the provision of Or.der XL Rule 1
  of the Supreme Court Rules, one may get the impression that
  the e):tent of review in criminal cases is more restricted than in
C civil cases. But the said impression has been given a quietus
  by this Court in its Constitution Bench judgment in Eswara case
  (supra).

          39. Delivering the main judgment, Justice Krishna lyer held-
D   "So it is reasonable to assume that the framers of the rules
    could not have intended a restrictive review over criminal orders
    or judgments. It is likely to be the other way about. Supposing
    an accused is sentenced to death by the Supreme Court and
    the 'deceased' shows up in court and the court discovers the
    tragic treachery of the recorded testimony. Is the court helpless
E   to review and set aside the sentence of hanging? We think not.
    The power to review is in Article 137 and it is equally wide in
    all proceedings. The Rule merely canalizes the flow from the
    reservoir of power. The stream cannot stifle the source.
    Moreover, the dynamics of interpretation depend on the
F   demand of the context and the lexical limits of the test. Here
    _'record' means any material which is already on record or may,
    with the permission of the court, be brought on record. If justice
     summons the judges to allow a vital material in, it becomes part
     of the record; and if apparent error is there, correction becomes
G    necessitous." (See para 34, pg. 695)

         40. Keeping those parameters in mind, let us consider the
    extent to which power of review can be extended in the facts
    of this second review.
H
    REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                        979
    BANI KANT DAS [ASOK KUMAR GANGULY, J.]

      41 . In our view several aspects of this Court'"s judgment       A
 dated 8.5.2009, rendered on the Article 32 petition, call for a
 review.

       42. In the judgment which is under review in the second
  review petition, the Court concluded:
                                                                       B
        (a)   NHRC has no jurisdiction to interfere and make a
              recommendation , and

        (b)   The order of the Governor in commuting the
              sentence of death to one of life is bad in law as it     c
              did not disclose any reason .

       43. On a review, we are constrained to hold that both
  findings on (a) and (b) are vitiated by errors apparent on the
  face of the record .
                                                                       0
                                                                           I
  A.Jurisdiction of NHRC

       44. The NHRC was constituted under Section 3 of the
  1993 Act for better protection of human rights. The term 'human
_ rights' as defined in Section 2(d) of the 1993 Act, reads as         E
  follows:
                                                  .        .
       "2. (d) "Human rights" means the right~ relating to life,
       liberty, equality and dignity of the individual guaranteed by
       the Constitution or embodied in the International Covenants
       and .enforceable by court~ in India."                           F
                                          <'


      45. The functions of NHRC have been set out in Section
. 12 of the 1993 Act. Section 12 reads as follows:

       "12. Functions of the Commission- The Commission shall          G
       perform all or any of the following functions namely:

       a. inquire, suo motu or on a petition presented to it by a
       victim or any person on his behalf or on a direction or order
       of any cou~, into complaint of
                                                                       H
    980 SUPREME COURT REPORTS (2010J 15 (ADDL.) S.C.R.


A       (i)    violation of human rights or abetment thereof; or

        (ii)   negligence in the prevention of such violation, by a
               public servant;

       b. intervene in any proceeding involving any allegation of
B      violation of human rights pending before a court with the
       approval of such court;

       c. visit, notwithstand.ing anything contained in any other law
       for tn:J time being in force, any jail or other institution under
c      the control of the State Government, where persons are
       detained or lodged for purposes of treatment, reformation
       or protection, for the study of the living conditions of the
       inmates thereof and make recommendations thereon to
       the Government;
D      d. review the safeguards provided by or under the
       Constitution or any law for the time being in force for the
       protection of human rights and recommend measures for
       their effective implementation;

E      e. review the factors, including acts of terrorism, that inhibit
       the enjoyment of human rights and recommend appropriate
       remedial measures;

       f. study treaties and other international instruments on
       human rights and make recommendations for their
F      effective implementation;

       g . undertake and promote research in the field of human
       rights ;

G      h. spread human rights literacy among various sections of
       society and promote awareness of the safeguards
       available for the protection of these rights through
       publications, the media, seminars and other available
       means;
H
  REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                         ~1
  BANI KANT DAS [ASOK KUMAR GANGULY, J.]
    i. encourage the efforts of non-governmental organization        A
    and institutions working in the field of human rights;

    j. such other functions as it may consider necessary for the
    promotion of human rights. "

      46. The NHRC has been constituted to inquire into cases        B
of violation of and for protection and promotion of human rights.
This power is an extensive one, which should not be narrowly
viewed.

     47. It must be jurisprudentially accepted that human right      C
is a broad concept and cannot be straitjacketed within narrow
confines. Any attempt to do so would truncate its all-embracing
scope and reach; and denude it of its vigour and vitality. That
is why, in seeking to define human rights, the Legislature has
used such a wide expression in section 2(d} of the Act. It is also   o
significant to note that while defining the powers and functions
of NHRC under section 12 of the Act, the said broad vision has
been envisioned in the residuary clause in Section 120).

     48. Therefore, it is imperative that while interpreting the
powers and jurisdiction of NHRC, the Court construes section         E
2(d) of the 1993 Act along with its long title and also the
Statement of Objects and Reasons of the said Act. The relevant
portion of the statement of objects and reasons are excerpted
below:

     "2. However, there has been growing concern in the
     country and abroad about issues relating to human rights.
     Having regard to this, changing social realities and the
     emerging trends in the nature of crime and violence,
     Government has been reviewing the existing laws,                G
     procedu.res, and system of administration of justice; with
     a view to bringing about greater accountability and
     transparency in them, and devising efficient and effective
   . methods of dealing with the situation."
                                                                     H
    982    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A       49. In his Tagore Law Lecture (The Dialectics and
    Dynamics of Human Rights in India), Justice V.R. Krishna lyer
    describes the width and sweep of human rights in his matchless
    words and which are worth quoting:

          "Human rights are writ on a large canvas, as large as the
B
          sky. The law makers, lawyers and.particularly, the judges,
          must make the printed text vibrant with human values, not
          be scared of consequences on the status quo order. The
          militant challenges of today need a mobilization of
          revolutionary consciousness sans which civilized systems
c         cease to exist. Remember, we are all active navigators,
          not idle passengers, on spaceship earth as it ascends to
          celestial levels of the glorious human future."

          50. We share the same view.
D
       51. What was said by Alexander Hamilton, the great
  constitutional expert and political philosopher, way back in
  1775, is poignant still today for having a clear perception of
  what human rights are. The words of Hamilton still resonate with
E a strange relevance and immediacy, and are quoted below:

          "The sacred rights of mankind are not to be rummaged for,
          among old parchments, or musty records. They are written,
          as with a sun beam in the whole volume of human nature,
          by the hand of divinity itself; and can never be erased or
F         obscured by mortal power."

          52. Keeping those broad principles in our mind if we look
    at Section 120) of the 1993 Act, we find that it confers on NHRC
  - "such other functions as it may consider necessary for the
 G promotion of human rights.:· It is not necessary that each and
    every case relating to the violation of human rights will fit
    squarely within the four corners of section 12 of the 1993 Act,
    for invoking the jurisdiction of the NHRC. One must accept that
    human rights are not like edicts inscribed on a rock. They are
.H made and unmade on the crucible of experience and through ·
    REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                        983
    BANI KANT DAS [ASO~ KUMAR GA_NGULY, J .]

  .irreversible process of human struggle for freedom . They admit A ·
   of a certain degree of fluidity. Categories of human right~.
   being of infinite variety, are never really closed. That is why the
   residuary clause in sub-section U) has been so widely worded
   to take care of situations not covered by sub-sections (a) to (i)
   of Section 12 of the 1993 Act. The jurisdiction of NHRC thus 8
   stand·s enlarged by section 120} of the 1993 Act, to take
   necessary action for the protection of human rights. Such action
   would include inqujring into cases where a party has .been ·
, deni~d the protection of any law to which he is entitled, whether
, by a private party, a public institution, the government or even c
· the Courts of law. We are of the opinion that if a person is
   entitled to benefit under a particular law, and benefits under that
   law .have been denied to him, it will amount to a violation of his
   human rights.

       53. Human ~ights are the basic, inherent, immutable and        D
                                                                          I
  inalienable rights to which a person is entitled simply by virtue
  of his being born. a human. They ~re such rights which are to
  be made available as a matter of right. Constitution and
  Legislations of civilized country recognise them' since they are
 so quintessentially part of every human·being. That is why every     E
 democratic country ·committed to rule of Law put into force
 mechanisms for their enforcement and protection. HLfman rights
 are universal in nature. The Universal Declaration of Human
  Rights {here~nafter referred · to as UDHR) adopted by the
 General Assembly of the United Nations on 1Oth December              F
  1948 recognizes and requires the observance of certain
 universal rights. articulated therein. 'to be human rights, and
 these are acknowledged and accepted as equal and
 inalienable and necessary for the inherent dignity and
 development of an individual. Consequently, though the term          G
 'human rights' itself has not been defined in UDHR, the nature
 and content of human rights can be understood from the rights
 enunciated therein.

     54. Possibly considering the wide sweep of such basic
                                                                      H
    984    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A rights, the definition of 'human rights' in the 1993 Act has been
  designedly kept very broad to encompass within it all the rights
  relating to life, liberty, equality and dignity of the individual
  guaranteed by the Constitution or embodied in the International
  Covenants and enforceable by Courts in India.
B
       55. Thus, if a person has been guaranteed certain rights
  either under the Constitution or under an International Covenant
  or under a law, and he is denied access to such a right, then·it
  amounts to a clear violation of his human right and NHRC has
C the jurisdiction to intervene for protecting it.

       56. The contrary finding in the judgment under review about
  the absence of jurisdiction of NHRC to make some
  recommendations to the Governor is thus vitiated by errors
  apparent on the face of the record. Of course NHRC cannot
D intervene in proceeding pending in Court without its approval
  [Section 12(6)] as it is assumed that Court will remedy any case
  of violation of human rights.

       57. The assumption in the judgment under review that there
E can be no violation of a person's human right by a judgment of
  this Court is possibly not correct. This Court in exercise of its
  appellate jurisdiction has to deal with many judgments of High
  Courts and Tribunals in which the High Courts or the Tribunals,
  on an erroneous perception of facts and law, have rendered ·
  decisions in breach of human rights of the parties and this Court ·
F corrects such errors in those judgments.

         58. The instances of this Court's judgment violating the
    ·human rights of the citizens may be extremely rare but it cannot
     be said that such a situation can never happen.
G
        59. We can remind ourselves of the majority decision of
    the Constitution Bench of this court in Additional District
    Magistrate Jabalpur v. Shivakant Shukla reported in (1976)
    2 sec s21.
H         60. The majority opinion was that in view of the Presidential .
    REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                         985
    BANI KANT DAS [ASOK KUMAR GAN<;3U~y, )..} .
              I

 order dated 27.6.1975 under Article 359(1) of the Constitution,      A
 no person has the loc~.:~s standi to move any writ petition under
 Article 226 before a High Court for Habeas Corpus or any other
 writ to enforce any right to personal liberty of a person detained
 under the then law of preventive detention{ Maintenance of
 Internal Security Act of 1971}, on the· ground that the order is      8
 illegal or malafide or not in compliance with the Act.(See paras
 78 and 136 of the report)

      61 . The lone dissenting voice of Justice K!Janna
 interpreted the legal position differently by inter alia holding:
                                                                      c
       "(8) Article 226 under which the High Courts can issue
       writs of Habeas Corpus is an integral part of the
       Constitution. No power has been conferred upon any
       authority in the Constitution for suspending the power of
       the High Court to issue writs in the nature of habeas corpu~ - . D
       during the. period of emergency-. Such a result cannot be·
       brought about by putting some particular construction     on
       the Presidential order in question."(Point 8 at page 777
       of the report)
                                                                        E
       62. There is no doubt that the majority judgment of this
  court in the ADM Jabalpur case (sup ~a) violated the
  fundamental rights of a large number of people in this country.
  Commenting on the majority judgment, Chief Justice
  Venkatachalliah in the Khanna Memorial Lecture delivered on
                                                                        F
. 25.2 .2009, observed that the same be 'confined to the dustbin
  of history.' The learned Chief Justice equated Justice Khanna's
  dissent with the celebrated dissent of Lord Atkins in Liversidge
  v. Sir John Anderson reported in (1942) AC 206.

      63. In fact the dissent of Justice Khanna became the_law         G
 of the land when, by virtue of the Forty Fourth Constitutional
 Amendment, Articles 20 and 21 were excluded from the
 purview of suspension during emergency.

      64. But we hasten to add that NHRC cannot function as a          H
    986 SUPREME COURT REPOR~S {201 0}15 (ADDL.) S.C.R.

A parallel seat of justice to rectify or correct or comment upon
  orders passed by this Court or any other Courts of competent
  jurisdiction. For correcting an order in a judicial proceeding, the
  aggrieved party has to avail of the well established gamut of
  the corrective machinery of appeal, revision , review, curative
B petit!on and so on.

       65. In fact in this case the NHRC did not send any
  recommendation as .long as the first review proceedings were
  pending in this C<?tJrt. The NHRC was keeping a track of the
C proceeding in the Cou-rt. From its order dated 16.10.09, it is
  revealed that NHRC was aware that a review petition was filed
  against the judgment of this Court in Criminal Appeal No. 4/
  2000, in addition to a mercy-petition filed before the Governor
  of Assam. The NHRC closely followed the proceedings of the
  review petition.
0
        66. The NHRC made its recommendations on 21 .5.2001
    only after_the judgment in first review. (No.11 osi2.000) was
    passed on 10.5.2001 by this Court.

E       67. About NHRC, this Court in Paramjit Kaur v_ State of
    Punjab and Ors. - (1999) 2 SCC 131 held:

               "10. The Commission headed by a former Chief
        Justice ·of India is a unique expert body in itself. The
        Fundamental Rights, contained in Part Ill of the Constitution
F       of India, r~present the basic human rights possessed by
        every human being in this world inhabited by people of
        different continents, countries, castes , co.l ours and
        religions. The country, the colour and the religion may have
        divided them into different groups but as human beings,
G       they are all one and possess the same rights."

                11. The Chairman of the Commission, in his capacity
          as a Judge of the High Court and then as a Judge of this
        · Court and also as the Chief Justice of India, and so also
          two other members who have held high judicial offices as
H
            REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                        987
            BANI KANT DAS [ASOK KUMAR GANGULY, J.]
                                                      '
              Chief Justices of the High Courts, have throughout their        A
              tenure , considered, expounded and enforced the
              Fundamental Rights and are, in their own way, experts in
              the field . The Commission, therefore, is truly an expert
              body to which a reference flas been made by this Court
              in the instant case."                                           8

              68. After the aforesaid observations this court decided that
          when in exercise of its power under Article 32, this Court· gives
          any directions to NHRC, then like all other authorities in this
          country, NHRC is bound by such directions. In such situations,      C
          NHRC acts 'sui-generis'. The statutory bar of limitation under
          Section 36(2} of the 1993 Act will not stand in the way (paras
          12 and 15, pages 137-138 of the report).

               69. Therefore, NHRC, a statutory body, in a given situation,
          may have to act under the order or direction given by this Court    D·
          in exercise of its constitutional power of judicial review.

                70. However, in the facts of this case, NHRC has not
          committed any illegality by taking into consideration the article
          written by Professor Ved Kumari and then making a mere E ,
          recommendation to the Governor, for considering the ,
          petitioner's plea for commutation. We are of the opinion that
          in doing so, NHRC acted within its jurisdiction.

· · ...             B.       Whether non-disclosure of reason vitiates the
                             Order of the Governor under Article 161 of the   F
                             Constitution?

           71 . In the judgment on Article 32 petition, it was noted that
      the order of the Governor directing commutation "does .not
      indicate any reason" and this, according to the judgment is             G
      contrary to a decision of this Court in Epuru Sudhakar and
      another v. Government of A.P. & Ors., reported in 2006 (8)
      SCC 161 . The impugned judgment quotes para 38 from Epuru
    • (supra).

              72. After quoting that, the impugned judgment quashes the
               ..        I
                                                                              H
    988    SUPREME COURT REPORTS [201 0] 15 (ADOL.) S.C.R.

A order of commutation by the Governor and directed
  reconsideration .

        73. On review of the aforesaid reasoning, we find that this
  finding in the judgment is vitiated by errors apparent on the face
B of the record.

        74. In this case, the entire record relating to exercise of
    power by the Governor was always available for perus.al of the
    Court.

c         75. It is well-settled that while exercising power of
    commutation under Article 161 of the Constitution, the Governor
    is to act on the aid and advice of the Council of Ministers.

           76. From a perusal of the materials on the file , it appears
      that detailed consideration has been made in the Chief
0 Minister's Secretariat and notes in detail have been put up by
      the Chief Minister's Secretariat, wherein the entire factual
      aspect of the case has been considered. The different
      judgments given in the first review petition were part of the note,
       and on a consideration of the detailed note, the Chief Minister
E approved on 22.10.2001 the note put up before him by the
      Secretary, Judicial Department for commutation. Thereafter, the
       matter was placed before the Governor's Secretariat with the
 · ...entire record. The Hon'ble Governor approved the proposal on
       12.1.2002. Therefore, more than adequate reasons are
F available on the records of the case.

         77. It was open to the Bench passing the judgment under
    review to peruse the entire record.
       78. However, on the extent of judicial review in respect of
G exercise of power by the Governor under Article 161, or by the
  President under Article 72, there are authoritative
  pronouncements by this Court and the matter is no longer res-
  integra.
H         79. In G. Krishta Goud & J. Bhoomaiah v. State of Andhra
      REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                        -9 89
      BANI KANT DAS [ASOK KUMAR GANGULY, J.)

   Pradesh & Ors. reported in (1976) 1 SCC 157, this Court while           A
   construing the extent of judicial review in connection with
   exercise of clemency power by the President or the Governor
   respectively under Articles 72 and 161 held that even though
   the power granted to the highest executive authority is not totally
   immune from judicial review, but Court makes an almost                  B
   extreme presumption in favour of bonafide exercise of such
   power (Para 8). However, in para 9 the Court sounded a note
   of caution that where the exercise of power is just by way of a
   rule of thumb and totally arbitrarily or out of personal vendetta,
   the Court is not helpless. (See para 9)                                 c
                                                                         '-· -

        80. This question again came up for detailed consideration
    before the Constitution Bench in the case of Maru Ram v.
    Union of India & Ors. reported in ( 1981) 1 SCC 107. In para
    72 at page 153 of the report, this court was summarizing its
, . conclusions and in sub-para 9 it was held that only in rare cases D
    the Court wou ld examine the exercise of power by the
    appropriate authority. Subsequently, in Kehar Singh & Anr. v.
    Union oflndia & Anr. reported in (1989) 1 SCC 204, again by
    a Constitution Bench of this Court, the extent of exercise of this ·
    power of clemency was considered. In para 13, Chief Justice E
    Pathak, speaking for the Constitution Bench, held-

        " Nor do we dispute that the power to pardon belongs
        exclusively to the President and the Governor under the
        Constitution. There is also no question involved in this case       F
        of asking for the reasons for the President's order. And
        none of the cases cited for the respondents beginning with
        Mohinder Singh Gill (1977 (3)   sec  346) advance the case
        of the respondent any further." (emphasis added)

        81 . It also appears from para 11 of Kehar Singh (supra)           G
   that it relies on the formu ~ ations of principles in Maru Ram
   (supra). Paras 7 and 15 of Kehar Singh (supra) would also
   show that Maru Ram .(supra) ratio was followed in Kehar Singh
   (supra).
                                                                            H ·
         990   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


 A        82. In view of such consistent view of the two Constitution
    Benches of this court clearly stating that unless the exercise of
    power by the Governor under Article 161 , is ex facie perverse
    or is ·based on a rule of thumb, the Court should not interfere
    for mere non-disclosure of reason , the finding to the contrary
  B in the judgment under review, by relying on a two-judge Bench
    decision in Epuru (supra) case, is vitiated by errors apparent
    on the face of the record. Even in para 37 in Epuru (supra),
    the observation of Kehar Singh (supra), underlined hereinabove
    were noted.
  c            83. In the instant case, a perusal of the record shows that
          upon a detailed consideration of the relevant facts , the
          Governor exercised his power of commutation. Such an .
          exercise does not call for any interference, in view of the law
....    · laid down both in Maru Ram (supra) and Kehar Singh (supra).
    0
         84. From the perusal of the file this Court also notes that
    in passing the order, the Governor considered all the relevant
    materials, including the judgment of three learned Judges in the
    first review petition filed by the petitioner, as also the
  E recommendation of NHRC.

         85. This Court has already held that NHRC has the
    jurisdiction , in the facts of this case , to make its
    recommendation to the Governor to take into account the
    materials which NHRC considered. This court also finds that
  F the Governor considered, apart from the said recommendation
    of NH!1C, other relevant materials also and, therefore, the order
    of the Governor is not vitiated in as much as it is not solely
    based on the recommendations of NHRC.

  G           86. Now the only question which remains to be considered
         is whether the petitioner is entitled to insist on a fresh look at
         his juvenility and a fresh consideration of his rights in view of
         the changes in the Juvenile Justice (Care & Protection of
         Children) Act, 2000 by 2006 amendment.
   H
   REMDEO CHAUHAN @ RAJNATH CHAUHAN v.                          991
   BANI KANT DAS [ASOK KUMAR GANGULY, J.]

       87. Th is point has not been stated in the review petition       A
 even though this was argued by the learned counsel for the
 petitioner.
                                 .·
      88. Mr. P.S. Patwalia, the amicus appearing inJhe case,
 objected to this Court making a pronouncement.on this question         B
 which is argued for the first time in review even though it is not
 pleaded in the review petition ~s a ground for review.
                                          , .. .
      89. This court finds some substanc~ in the said objection.
 We have already indicated that in 'the Article 32 petition notice
 was served on the review petitioner and it was open to him to          C
 raise these points in that proceeding as by that time the Juvenile
 Justice (Care and Protection of Children) Act , 20qo as
 amended by the 2006 amendment Act .had come into force.'
                                                  ..
       90. EveA though the ambit of the review petition has been        o.
 widened by this Court in Eswara (supra), it has t9 foll9w broadly
 the· principles of review under Order XLVII Rule 1 C?f th_e Code
 of Civil Proceflure ..

        91 . Following the discipline of Order XLVII, Rule 1 or the:
   concept of 'an error apparent on the face of the record', we E
   possibly cannot pronounce in a review petition on a question,
   which was open to be raised in the original proceeding, but was
   not raised. That apart, it has not at all been pleaded in the
 • ~eview petition. For these reasons, this Court refrains itself from
. pronouncing on the rights of-the petitioner under Juvenile Justice F
.·(Care and Protection) Act, 2000 as amended by the 2006
· Amendment. If he is so advised , it is 'open to the petitioner to ·
   agitate on his rights under the said Act before the appmpriate
 , Forum and in appropriate .proceedings.
                                                                        G
       92. If such a prgcee<;fing is initiated by the petitioner, the
 same will be dealt with without ·being impeded · by any
 observation made or_finding reached in any of the judgments
 arising out of the concerned criminal case against the
 petitioner, by any Court, including this Court.
    992    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

A        93. For the reasons discussed above and considering the
    aforesaid legal issues, this Court concludes as follows :

           (i)     The judgment of this Court dated 8.5.2009 on
                   Article 32 petition and which is under Review is set
                   aside .
B
           (ii)    The order of the Governor dated 28.1.2002 passed
                   under Article 161 of the Constitution is restored and
                   the order of commutation of death sentence
                   awarded to the petitioner to one of life
c                  imprisonment stands.

           (iii)   This Court holds that in the facts of this case, NHRC
                   had the jurisdiction to make the relevant
                   recommendation.
0       94. The review petition is allowed to the extent indicated
    hereinabove.

          95. Parties are left to bear their own costs.

    B.B.B.                                    Review Petition allowed