G. Krishta Goud & J. Bhoomaiah Vs.
State of Andhra Pradesh & Ors  INSC 235 (3 October 1975)
Constitution of India, 1950, Art. 72-Scope of
President's power-Power of review 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
HELD: (1) Assuming that the offences are
political offences, under the Indian Penal Code, murder is murder and 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 H], (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 to examine in whom the remedy lies if
arbitrary exercise of public power is definitely established a particular case.
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 D-E].
CRIMINAL APPELLATE JURISDICTION: Petition for
Special Leave to Appeal (Crl) No. 840 of 1975.
From the judgment and order dated 1st 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
ORDER OF THE COURT The young petitioners held
to be murderers by the Court and sentenced to death, having regard to the
blood-curdling ruthlessness of the guilt, crossed over from the jurisdiction of
courts to the clemency zone of the President under Art 72. This last chance to
live appeal for mercy by men who mercilessly killed, allegedly 74 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 rushed the petitioners back to the High Court to save their life
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 basics. A politically motivated offence committed by the two
frustrated men who were disenchanted by the die-hard 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 of commutation illegal and unconscionable. Assuming a measure of
validity in this socio-poilitical 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 channeled 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 sky'. Shri Garg, undaunted by this inhibitive
doctrine, insisted that the dynamics of power in a democratic polity must be
governed by the rule of law, 'basic feature' of the Constitution. True, where
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
reject all irrelevant factors in reaching his verdict of death or life. Here, urged
Shri Garg, two vital digits 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 this Court and the penal reform
currently before Parliament.
The force of the twin submissions, together
with a third noticed in Ediga Anamma 3SCR329 viz., the secred, yet
secular commandment "thou shall not kill" need not be under-rated to
undo their argumentative potency in this forum. What is powerful as pre
legislative 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 and the know-how handed down to Courts by
the legislature. Judges may have a creative role and do activist engineering 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
But the Penal Code which, by oath of office,
we enforce, makes no such classification and in 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 criminals
on whom judicial sentences may have been imposed.
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(1) is Court half explored the
area of 'mercy' power but switched on to a different question without
pronouncing on the Court's review of Presidential exercise of commutation or
respite power. Sinha.C.J. speaking 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." (p. 516) x x x x 1)  1 S. C, R. 497.
76 The Rule of law, in contradiction 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) "We have thus briefly set out
the history 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 of 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 judicial 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 public 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 review, it is
officious encroachment, at once procedurally ultra vires and upsetting comity of
high instrumentalities, for this Court to be a super power unlimited. 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.
77 We must however sound a note of caution.
Absolute arbitrary, 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 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 resentment in public opinion,, it is not
for us to examine now. Enough unto the day is the evil thereof.
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 prospective change in the law
bearing on that penalty in the new Penal Code Bill, the later declaration of
law in tune with modern 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,, 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 the real heart of law.
A recent publication states with graphic grimness, " The man sits in a
cage of steel and concrete under a single bright light that burns 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) Our reflections on
hanging,, our philosophy for mercy and our observations 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 have no jurisdiction. We accordingly dismiss the special
V.P.S. Petition dismissed.