# DEVENDER PAL SINGH BHULLAR v. STATE OF N.C.T. OF DELHI

- **Citation:** [2013] 6 S.C.R. 676
- **Court:** Supreme Court of India
- **Decided:** 2013-04-12
- **Bench:** G.S. Singhvi, Sudhansu Jyoti Mukhopadhaya
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/devender-pal-singh-bhullar-v-state-of-n-c-t-of-delhi-29310
- **Pages:** 81

## Headnote

Constitution of India, 1950:
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
0
review only on the ground of undue delay - the rule that long
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
G
H
facts after taking aid and advice of the Council of Minister.
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
676
'
DEVENDER PAL SINGH BHULLAR v. STATE OF
677
N.C.T. OF DELHI
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:
(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
for issue of a judicial fiat for commutation of the sentence
of death into life imprisonment irrespective of the nature
and magnitude of the crime committed by the convict and
the fact that the delay may have been occasioned due to
direct or indirect pressure brought upon the Government
by the convict through individuals, groups of people and
organizations from within or outside the country or failure
of the concerned public authorities to perform their duty?
D
E
F
(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
Presid

## Text

_Characters 0–39,969 of 155,381. This is a partial read: ask again with offset=39969 for what follows._

A
B
c
[2013] 6 S.C.R. 676
DEVENDER PAL SINGH BHULLAR
v.
STATE OF N.C.T. OF DELHI
(Writ Petition (Criminal) D. No. 16039 of 2011)
APRIL 12, 2013
[G.S. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
Constitution of India, 1950:
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
0
review only on the ground of undue delay - the rule that long
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
G
H
facts after taking aid and advice of the Council of Minister.
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
676
'
DEVENDER PAL SINGH BHULLAR v. STATE OF
677
N.C.T. OF DELHI
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:
(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
for issue of a judicial fiat for commutation of the sentence
of death into life imprisonment irrespective of the nature
and magnitude of the crime committed by the convict and
the fact that the delay may have been occasioned due to
direct or indirect pressure brought upon the Government
by the convict through individuals, groups of people and
organizations from within or outside the country or failure
of the concerned public authorities to perform their duty?
D
E
F
(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.
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.
B
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
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
F
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.
8
2.2. The rule that long delay may be one of the
grounds for commutation of the sentence of death into
life imprisonment cannot be invoked in cases where a
person is convicted for offence under TADA or similar
statutes. Such cases stand on an altogether different
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,
i.e., between May 2005 and May 2011. During this period,
immense pressure was brought upon the Government in
B
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
that would have avoided unnecessary controversy. Thus,
E
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:
H
(1973) 1 sec 20
referred to
Para 4
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
referred to
c
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
(1989) 3 SCR 775
referred to
Para 13
G
(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
B
2006 (7) Suppl. SCR 81
relied on
Para 21
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)
H
D.No. 16039 of 2011.
'
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,
Sudhakar Joshi, Nachiketa Joshi, Ci1aitanya Joshi for the
Petitioner.
B
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
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,
D
· 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
F
G
H
"The issue of abolition or retention has to be decided on
a balancing of the various arguments for and against
retention. No single argument for abolition or retention can
decide the issue. In arriving at any conclusion on the
subject, the need for protecting society in general and
individual human beings must be borne in mind.
It is difficult to rule out the validity of, or the strength behind,
many of the arguments for abolition nor does, the
commission treat lightly the argument based on the
irrevocability of the sentence of death, the need for a
modern approach, the severity of capital punishment and
the strong feeling shown by certain sections of public
opinion in stressing deeper questions of human values.
Having regard, however, to the conditions in India, to the
'
DEVENDER PAL SINGH BHULLAR v. STATE OF
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variety of the social upbringing of its inhabitants, to the
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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
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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
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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.
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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
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'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:
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·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
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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
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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
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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
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power to grant pardons, reprieves, respites or remissions
of punishment or to suspend. remit or commute the
sentence of any person convicted of any offence "in all
cases where the sentence is a sentence of death". Article
72(3) further provides that "nothing in sub-clause (c) of
clause (1) shall affect the power to suspend. remit or
commute a sentence of death exercisable by the Governor
of a State under any law for the time being in force". The
obvious reference is to Sections 401 and 402 of the
Criminal Procedure Code. Then again Entries 1 and 2 in
List Ill of the Seventh Schedule refer to Criminal Law and
Criminal Procedure. In Entry No. 1 the entry Criminal Law
is extended by specifically including therein "all matters
included in the Indian Penal Code at the commencement
of this Constitution". All matters not only referred to
offences but also punishments-one of which is the death
sentence. Article 134 gives a right of appeal to the
Supreme Court where the High Court reverses an order
of 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
punishment and had made constitutional provisions for
appeal. reprieve and the like. But more important than
these provisions in the Constitution is Article 21 which
provides that no person shall be deprived of his life except
according to procedure established by law. The
implication is very clear. Deprivation of life is
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DEVENDER PAL SINGH BHULLAR v. STATE OF
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constitutionally permissible if that is done according to
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procedure established by law. In the face of these
indications of constitutional postulates it will be very difficult
to hold that capital sentence was regarded per se
unreasonable or not in the public interest."
(emphasis supplied)
5. The constitutional validity of Section 302 IPC, which
prescribes death as one of the punishments, was considered
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by the Constitution Bench in Bachan Singh v. State of Punjab
(1980) 2 SCC 684. By a majority of 4:1, the Constitution Bench
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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:
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"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
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the Penal Code on the ground of reasonableness in the
light of Articles 19 and 21 of the Constitution, it is not
necessary for us to express any categorical opinion, one
way or the other, as to which of these two antithetical views,
held by the Abolitionists and Retentionists, is correct. It is
sufficient to say that the very fact that persons of reason,
learning and light are rationally and deeply divided in their
opinion on this issue, is a ground among others, for
rejecting the petitioners argument that retention of death
penalty in the impugned provision, is totally devoid of
reason and purpose. If, notwithstanding the view of the
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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
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crime conditions in India, contemporary public opinion
channelized through the people's representatives in
Parliament, has repeatedly in the last three decades,
rejected all attempts, including the one made recently, to
abolish or specifically restrict the area of death penalty, if
death penalty is still a recognised legal sanction for murder
or some types of murder in most of the civilised countries
in the world, if the framers of the Indian Constitution were
fully aware -
as we shall presently show they were -
of
the existence of death penalty as punishment for murder,
under the Indian Penal Code, if the 35th Report and
subsequent reports of the Law Commission suggesting
retention of death penalty, and recommending revision of
the Criminal Procedure Code and the insertion of the new
Sections 235(2) and 354(3) in that Code providing for presentence hearing and sentencing procedure on conviction
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
an alternative punishment for murder, in Section 302 of the
Penal Code is unreasonable and not in the public interest.
We would, therefore, conclude that the impugned provision
in Section 302, violates neither the letter nor the ethos of
Article 19."
While dealing with the argument that Section 302 violates
Article 21 of the Constitution, Sarkaria, J. referred to the
judgment in Maneka Gandhi v. Union of India (1978) 1 SCC
248 and observed:
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"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
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established by valid law. There are several other
DEVENDER PAL SINGH BHULLAR v. STATE OF
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N.C.T. OF DELHI [GS. SINGHVI, J.]
indications, also, in the Constitution which show that the
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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
Procedure as in force at the commencement of the
Constitution. Article 72(1 )(c) specifically invests the
President with power to suspend. remit or commute the
sentence of any person convicted of any offence. and also
"in all cases where the sentence is a sentence of death".
Likewise. under Article 161. the Governor of a State has
been given power to suspend. remit or commute. inter alia.
the sentence of death of any person convicted of murder
or other capital offence relating to a matter to which the
executive power of the State extends. Article 134. in terms.
gives a,right of appeal to the Supreme Court to a person
who. on'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
carried out by hanging. In view of the aforesaid
constitutional postulates. by no stretch of imagination can
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it be said that death penalty under Section 302 of the
Penal Code. either per se or because of its execution by
hanging. constitutes an unreasonable. cruel or unusual
punishment. By reason of the same constitutional
postulates, it cannot be said that the framers of the
Constitution considered death sentence for murder or the
prescribed traditional mode of its execution as a
degrading punishment which would defile "the dignity of the
individual" within the contemplation of the preamble to the
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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)
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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:
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"Firstly, there is little agreement among penologists and
jurists as to what information about the crime and criminal
is relevant and what is not relevant for fixing the dose of
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
movement, "crimes are only to be measured by the injury
done to society". But the 20th Century sociologists do not
wholly agree with this view. In the opinion of Von Hirsch,
the "seriousness of a crime depends both on the harm
done (or risked) by the act and degree of actor's
culpability". But how is the degree of that culpability to be
measured. Can any thermometer be devised to measure
its degree? This is a very baffling, difficult and intricate
problem.
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Secondly, criminal cases do not fall into set behavioristic
patterns. Even within a single-category offence there are
infinite, unpredictable and unforeseeable variations. No two
cases are exactly identical. There are countless
permutations and combinations which are beyond the
anticipatory capacity of the human calculus. Each case
presents its own distinctive features, its peculiar
combinations of events and its unique configuration of
facts. "Simply in terms of blameworthiness or desert
criminal cases are different from one another in ways that
legislatures cannot anticipate, and limitations of language
prevent the precise description of differences that can be
anticipated." This is particularly true of murder. "There is
probably no offence", observed Sir Ernest Cowers,
Chairman of the Royal Commission, "that varies so widely
both in character and in moral guilt as that which falls within
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.
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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."
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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
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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
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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
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offender, also.
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Pre-planned, calculated, cold-blooded murder has always
been regarded as one of an aggravated kind. In
Jagmohan, it was reiterated by this Court that if a murder
is "diabolically conceived and cruelly executed", it would
justify the imposition of the death penalty on the murderer.
The same principle was substantially reiterated by V.R.
Krishna Iyer, J., speaking for the Bench in Ediga Anamma
(1974) 4 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 ...
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
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observed:
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"It may be noted that this indicator for imposing the death
sentence was crystallised in that case after paying due
regard to the shift in legislative policy embodied in Section
354(3) of the Code of Criminal Procedure, 1973, although
on the date of that decision (February 11, 1974), this
provision had not come into force. In Paras Ram case
(SLP(Crl.) Nos. 698 and 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-
DEVENDER PAL SINGH BHULLAR v. STATE OF
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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 0
clear to us that for making the choice of punishment or for
ascertaining the existence or absence of "special reasons"
in that context, the court must pay due regard both to the
crime and the criminal. What is the relative weight to be
given to the aggravating and mitigating factors, depends
on the facts and circumstances of the particular case. More 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".