# G. KRISHTA GOUD & J. BHOOMAIAH v. STATE OF ANDHRA PRADESH & ORS

- **Citation:** [1976] 2 S.C.R. 73
- **Court:** Supreme Court of India
- **Decided:** 1975-10-03
- **Case number:** Criminal Writ Petition No. 4168 of 1975
- **Bench:** V. R. Krishna !Yer, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-krishta-goud-j-bhoomaiah-v-state-of-andhra-pradesh-ors-6876
- **Pages:** 5

## Headnote

Constitution of India, 1950, Art. 72-Scope of Presidenfs power-Po.wer of
.-eview of Presidents' action by Courts.
The petitioners were found guilty of murder by the court and sentenced
to death. Their petition to the President of India for commuting the death
sentence was rejected. Thereupon, they filed a writ petition in the High Court
to quash the order of the President on the ground that he had not taken into
account two factors, namely. (1) the offences were 'political'; and (2) the
prevailing trends against death sentence. The High Court dismissed the petition.
Dismissing the petition for special leave to this Court.
HELD : ( l) Assuming that the offences are political offenoes, under the
Indian Penal Code, murder is murder an\! judges cannot re-write the law whatever their views on death sentence. as citizens, may be, and interfere where
they have no jurisdiction. [75 B-C; 77 HJ.
(2) All power, however majestic the dignitary· wielding it may be, shall
be exercised in good faith with intelligent and informed care and honestly
for the public weal. But, when the Constitution has empowered the nation's
highest Executive as the repository of the clemency power. the Court cannot
intervene and judicial review is excluded by implication. Since,
the contention, in this case, that equality is denied in the matter of sentence because some
get the benefit of clemency while others do not. has no foundation. nor is
there any trace of despotism involved. it is not necessary (o examine in whom
the remedy _lies if arbitrary exercise of public power is definitely established
in a particular case. [7 6 P..-,H].
[The rejection, however,. of one clemency petition does not exhaust the
power of the President or the Governor. Therefore, the petitioners may urge
the circumstances pressed before this Court for clemency
again
before the
·President.] [77 I>---E].
·

## Text

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73
G. KRISHTA GOUD & J. BHOOMAIAH
v.
STATE OF ANDHRA PRADESH & ORS.
October 3, 1975
[V. R. KRISHNA !YER AND A. C. GUPTA, JJ.J
Constitution of India, 1950, Art. 72-Scope of Presidenfs power-Po.wer of
.-eview of Presidents' action by Courts.
The petitioners were found guilty of murder by the court and sentenced
to death. Their petition to the President of India for commuting the death
sentence was rejected. Thereupon, they filed a writ petition in the High Court
to quash the order of the President on the ground that he had not taken into
account two factors, namely. (1) the offences were 'political'; and (2) the
prevailing trends against death sentence. The High Court dismissed the petition.
Dismissing the petition for special leave to this Court.
HELD : ( l) Assuming that the offences are political offenoes, under the
Indian Penal Code, murder is murder an\! judges cannot re-write the law whatever their views on death sentence. as citizens, may be, and interfere where
they have no jurisdiction. [75 B-C; 77 HJ.
(2) All power, however majestic the dignitary· wielding it may be, shall
be exercised in good faith with intelligent and informed care and honestly
for the public weal. But, when the Constitution has empowered the nation's
highest Executive as the repository of the clemency power. the Court cannot
intervene and judicial review is excluded by implication. Since,
the contention, in this case, that equality is denied in the matter of sentence because some
get the benefit of clemency while others do not. has no foundation. nor is
there any trace of despotism involved. it is not necessary (o examine in whom
the remedy _lies if arbitrary exercise of public power is definitely established
in a particular case. [7 6 P..-,H].
[The rejection, however,. of one clemency petition does not exhaust the
power of the President or the Governor. Therefore, the petitioners may urge
the circumstances pressed before this Court for clemency
again
before the
·President.] [77 I>---E].
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CRIMINAL APPELLATE JURISDICTION : Petition for Special Leave
to Appeal (Crl) No. 840 of 1975.
From the judgment and order dated lsl August, 1975 of
the
Andhra Pradesh High Court at Hyderabad in Criminal Writ Petition
No. 4168 of 1975.
R. K. Garg, S. C. Agarwala, V. J. Francis and Ram Panjwani,
for the petitioners .
P. Ram Reddy and P. P. Rao, for the· respondent.
ORDER OF THE COURT
The young petitioners held to be murderers by the Court
and
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sentenced to death, having regard to the blood-curdling ruthlessness
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-0f the guilt, crossed over from the jurisdiction of courts to the clemency zone of the President under Art. 72.
This last chance-toIive appeal for mercy by men who
mercilessly · killed,
allegedly
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74
SUPREME COURT REPORTS
(1976] 2 S.C.R.
driven by the humanist urge for catalysing social justice
through
terrorist technology, found no compassionate response.
The refusal
of the President to commute the death sentence rusued the petitioners
back to the High Court to save their lit:e through the Court's writ.
Rejection by that Court has compelled them to seek judicial sanctuary in the Supreme Court as the final scene of the Fifth Act of
the tragic drama is drawing near.
Shri Garg has grounded his arguments on two socio-legal b<isics.
A politically motivated offence committed by the two frustrated men
who were disenchanted by the diehard injustice of massive suffering
and suppression, to shock and shake the custodians of the status quo
ante, stands on a separate footing from the common run of crimes
and the root humanity of their ruthless inhumanity,
though
pertinent, was blindly brushed aside by the President. Thereby he excluded a crucially conscientious consideration from an
essentially
compassionate jurisdiction which rendered the rejection
o~ commutation illegal and unconscionable.
Assuming a measure of validity in this socio-political submission, can the Court-even the
Supreme Court-rush in where the Constitution has made the President the repository of a benignant life-or-death power, non-justiciable
without breaching the dykes of Art.
72 (or Art. 151, if it be the
Governor). and non-accountable except to the good conscience
of
the top Executive? Justice is not always
channelled through. a
Judge and what is out of bounds for and not enforceable through
regular courts does not, ipso jure, become arbitrary or unjust.
In
our Constitutional order any system of jurisprudence the Judicature
is a great "instrumentality but not 'a brooding omnipotence in
the
sl-y'.
Shri Garg, undaunted by this inhibitive doctrine, insisted that
the dynamics of power i'rr 'a democratic polity must be governed by
the rule of law, 'basic feature' of the Constitution. Tntc,
wlJere
law ends, tyranny begins.
Counsel's contention is that the President's 'mercy' power is subject to this paramount obligation to reckon
all relevant, and re_jcct all irrelevant factors in reaching his verdict
of death or life.
Here, urged Shri Garg, two vital dig~ts have been
overlooked-that political
offenders from
Bhagat
Singh to
the
Spanish five (whose execution recently quaked world public opinion)
were not common criminals and, secondly, that there has been obliviousness to the growing great trend against death penalty as a legal
barbarity now gleaned in pronouncements of t11is Court and the penal
reform currently before Parliament.
The force of the twin submissiolas, together with a third ;Joticcd
in Ediga Anamma [1974l3SCR329 viz.,
the
secred, yet secular
commandment "thou shall not kill" need not be under-rated to undo
their -argumentative potency in this fo,rum.
What is powerful as preJcgislativc campaign or post-legislative reform, what is
high
ethics
and noble humanism on Sunday pulpit and political platform and
what is sure to dawn tomorrow but is struggling to be born today
all these are on the law moulding matrix but not law now and here.
We are not prophets of the Advent but pragmatic technicians using
the tools alad the know-how handed down to Courts by the lcgis- .
lature.
Judges may have a creative role and do activist engineering
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G. KR!SHTA GOUD V. A. P. STATE
75
,but obedient to the text of the Constitution.
Such a perspective informs our appraisal of both the contentions-enumerated by him as
nine, but condensed by us into two.
Patriots and others seeking of accomplish political goals or to
attack the political order may commit .acts which under municipal
laws may be crimes-but are designated in other jurisdictions like
.extradition laws. and sometimes for purposes of reprieve as a
class
called political offences.
But the Penal Code which,. by oath of
-0ftice, we enforce, makes no such classification and ita the cold stare
-of our criminal system, murder is murder.
Moreover, the capital
punishment was imposed by a court in this case as early as 1972
and upheld right through.
As Judges, we cannot re-write the law
whatever our views of urgent reforms, as citizens, may be.
And the
sentence of death having been awarded by the Court, the judicial
frontiers have been crossed and, however regrettable and irrevocable,
taking of human life by the States' coercive apparatus, may be, our
·sympathies have no jural relevance.
So the new and expanding
trend towards abolition of capital penalty, while true, cannot help
the hangman's rope in this case.
·
The surviving point about the assail on the exercise of the 'clemency' power of President demands closer examination.
A constitutional order built on the founding faith of the rule of
law may posit wide powers in high functionaries and validly exclude
judge-power from eating these forbidden fruits.
Art. 72 (and art.
161) designedly and benignantly vest in the highest
executive the
humane and vast jurisdiction to remit, reprieve, respite,
commute
and pardon crin1inals on whom judicial sentences may have been
iml?osed.
Historically, it is a sovereign power; politically, it is a
residuary power; humanistically, it is in aid of
intangible
justice
· where imponderable factors ·operate for the well-being of the community, beyond the blinkered court process. In Nanavati(') this
!=?urt half,,explored the area of 'mercy' power but switched on to a
•ddferent question without pronouncing on the Court's review
of
Presidential. exercise of commumtion or respite power.
Si1nha
C. J. speakmg for the Court, observed :
"Pardon is one of the many prerogatives which have
been recognised since time immemorial as being vested in the
·sovereign,, wherever the sovereignty might lie.
Whether the
·sovereign happened to be an absolute monarch or a popular
republic or a constitutional king or queen, sovereignty has
-always been associated with the source power-the power
to appoint or dismiss public servants, the power to declare
war and conclude peace, the power to legislate and the power
to adjudicate upon all kinds of the disputes."
x
x
1) [1961] 1 S. C. R. 497.
x
(p. 516)
x
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76
SUPREME COURT REPORTS
(1976] 2 S.C.R.
'The Rule of Law, in contradistinCtion to the rule of man
includes within its wide connotation the absence of arbitrary
power, submission to the ordinary law of the land and the
equal protection of the laws.
As a result of the 'historical
process aforesaid,, the absolute and arbitrary power of the
monarch came to be canalised into three distinct wings of
the Government".
(p. 517)
x
x
x
x
"We have thus briefly set out the histqry of the genesis
and development of the Royal Prerogative of Mercy because
Mr. Seervai has strongly emphasised that the Royal Prerogative of Mercy is wide and absolute, and can be exercised
at any time.
Very elaborate arguments were addressed by
him before us on this aspect oI the matter and several English and American decisions were cited. . . . In fact we apprehend that entering into an elaborate discussion about the
scope and effect of the said larger power, in the light of
relevant judic.ial decisions, is likely to" create confusion and
to distract attention from the essential features of the very
narrow point that falls to be considered in the present case._"
(p.519)
It is apparent from these observations that the question of justiciability
has not been affirmed or negatived in the aforesaid decision.
No power in a republic is irresponsible or irresponsive, the people
in the last resort being the repositories and beneficiaries of pu]jjc
·power. But two limitations exist in our constitutional system.
The
Court cannot intervene everywhere as an omniscient, omnipotent or
omnipresent being.
And when the Constitution, as here, has empowered the nation's highest Executive, excluding, by implication, judicial
revfow, it is officious encroachment, at once procedurally ultra vires and
upsetting comity of high instrumentalities, for this Court to be a superpower un1imited.
The second limitation conditions all public power,.
whether a court oversees or no. That trust consists in the purity of
public authorities.
All power, however, majestic the dignitary wielding it, shall be exercised in good faith, with intelligent and informed
care and honestly for the public weal.
Counsel's contention that equality is denied in the matter of sentence where some get the benefit of clemency while others do not, has
no foundation nor is there any trace of despotism involved in this matter
in the case before us.
The court has deliberately awarded death sentence.
The President is expected to, and we are sure will, consider all
facts and circumstances bearing on the just discharge of his high duty.
When the President is the custodian of the power, the Court makes an
almost extreme presumption in favour of bona fide exercise.
We have
not been shown any demonstrable reason or glaring ground to consider the refusal of commutation in the present case as motivated by
malignity or degraded by abuse of power.
We therefore cannot find
our way to interfere with what the President has done.
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G. KRISHTA GOUD V. A. P. STATE
77
We must however sound a note of caution.
Absolute arbitrary,
A
law-unto-oneself malafide execution of public power, if gruesomely established, the Supreme Court may not be silent or impotent. Assuming
as proved the case of a President gripped by communal frenzy and
directing commutation of all the penalties where the convict belongs
to a certain community and refusing outright where the convict belongs
to a different community, there may be, as Shri Garg urged, a dilemma
for the Court.
Assuming the Governor in exercise of his power under
B
Art. 161 refusing to consider cases of commutation where the prisoner
is above 40 years of age as a rule of thumb or arbitrarily out of personal
vendatta rejecting the claim of clemency of a condemned prisoner, is
the Court helpless ? This large interrogation is highly hypothetical
and whether the remedy is in Court or by impeachment in Parliament
or by rising res~ntment in public opinion" it is not for us to examine
now.
Enough unto the day is the evil thereof.
C
Before parting with this special leave petition-which we reject-·
we visualize the contingency of the petitioners invoking the merciful
jurisdiction of the President or Governor, as the case may be, setting
out various factors with which the Court may not be concerned while
imposing judicial sentence but may still have persuasive value before
the concerned Executive.
The rejection of one clemency petition does
not exhaust the power of the President or the Governor.· The circumstances pressed before us about the political nature of the offence, the
undoubted decline in capital punishment in most countries of the world,
the prospeetive change in the law bearing on· that penalty in the new
Penal Code Bill, the later declaration of law in tune with modem penology with the correctional and rehabilitative bias emphasized by this
Court in Ediga Anamma (supra), the circumstances that the Damocle's
sword of death sentence had been hanging over the head of the convicts
for around 4 years and like factors may, perhaps 11 be urged before the
President.
Over the centuries, society has moved away from the crueller forms of inflicting legal death and almost a revolutionary change in
penology has taken place in England since, in 1801 AD,, a boy of 13
years old was hanged for stealing a spoon.
Not raw ferocity but
warm humanity is th~ real heart of law.
A recent publication states
with graphic grimness ;
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"The man sits in a cage of steel and concrete under a
single bright light that bums around the clock. He has been
tried by a jury of his peers, judged and sentenced to die. He has
killed and now society, through the anonymous machinery
of the state, will kill him. He has been brought here to keep
that appointment with death."
(The Life We Take-A case against the Death Penalty-by Trevor
Thomas-Friends Committee on Legislation, California)
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Our reflections on hanging,, our philosophy for mercy and our obser~
vations about death sentence being abolished in country after country
and the irrevocable harm of a wrong execution-these great facts cannot deflect us from our constitutional duty ,not to interfere where we
H
have no jurisdiction.
We accordingly dismiss th~ special leave petition.
V.P.S.
Petition dismissed.