Death Row Prisoner In Solitary Confinement For 11 Years : Supreme Court Reserves Judgment On Commutation Plea

Sohini Chowdhury

27 April 2022 4:52 AM GMT

  • Death Row Prisoner In Solitary Confinement For 11 Years : Supreme Court Reserves Judgment On Commutation Plea

    The Supreme Court, on Tuesday, reserved judgment in a plea challenging the order of the Karnataka High Court upholding the rejection of mercy petition by the President, wherein a death row convict had claimed to have been kept in solitary confinement for about 11 years, right after he was sentenced to death by the Sessions Court. Considering the same, on 21.04.2022, a Bench...

    The Supreme Court, on Tuesday, reserved judgment in a plea challenging the order of the Karnataka High Court upholding the rejection of mercy petition by the President, wherein a death row convict had claimed to have been kept in solitary confinement for about 11 years, right after he was sentenced to death by the Sessions Court.

    Considering the same, on 21.04.2022, a Bench comprising Justices U.U. Lalit, S. Ravindra Bhat and P.S. Narasimha had directed the District Judge, Belgaum (Karnataka) to conduct a local inspection of the ground realities of the circumstances in which he was lodged in a separate cell. The District Judge had paid a surprise visit to the Belgaum Central Prison, where the petitioner was lodged and after inspection submitted a report on 21.04.2022.

    On 26.10.2006, Umesh (petitioner) was convicted under Section 376, 302 and 392 IPC and was sentenced to death by the Sessions Judge, Fast Track Court-VII, Bangalore City. The Karnataka High Court affirmed the conviction and the sentence was confirmed by the majority opinion of the Court, based on the finding that there was no possibility of reformation. Subsequently, the Supreme Court upheld the decision of the Courts below. A writ petition was filed seeking open court hearing of the review petition, which was eventually allowed. After dismissing the review petition in chamber on 07.09.2011, the Supreme Court decided the review petition against the petitioner in open court on 03.10.2016.

    The petitioner had submitted a mercy petition before the President of India, which was rejected on 12.05.2013. After the dismissal of the review petition in 2016, he filed a Writ Petition before the Karnataka High Court challenging the executability of his death sentence, primarily, on four grounds -

    • Violation of Article 21 of the Constitution of India;
    • Delay in adjudicating the mercy petition;
    • Petitioner being put in solitary confinement and
    • Scope of judicial review

    Considering that the delay of one and a half years is attributable to the State Government rather than the Centre and given the fact that there was an overlap between judicial proceedings and disposal of mercy petition, the High Court was of the opinion that the "the delay claimed by the petitioner, howsoever inordinate would disappear into the background and cannot be taken notice of." Moreover, the High Court did not find the petitioner to be in solitary confinement.

    Solitary Confinement

    The Counsels for the petitioner as well as the State Government accepted the report prepared by the District Judge, Belgaum after visiting the Belgaum Central Prison, where the petitioner has been lodged since he was sentenced to death in 2006.

    Upon seeking instructions from the petitioner, Advocate, Dr. Yug Mohit Chaudhary, apprised the Bench, that the petitioner's confinement was in 3 phases -

    1. 1st Phase (2006 - Oct, 2016) - From the date of decision of the Sessions Court till the time the High Court stayed the execution he was in a block called 'Andheri Block', which had 12 cells. He submitted that was the worst part of the petitioner's solitary confinement. The petitioner was not allowed to go out at all. Food was provided inside the cell; the doctor as and when required also visited the petitioner inside the cell. Even if Glucose had to be administered it was done through a pipe inside the cell. Throughout the entire duration of his stay in that cell, he was not allowed to go outside, except to attend two yoga functions and a prayer session of Lord Ayyappa. He claimed that the conditions of his imprisonment in the 1st phase had led to the deterioration of his mental health.
    2. 2nd phase (Oct, 2016 to Jan, 2019) - He was lodged in the same Andheri Block but was allowed to come out of the cell 3 times a day. He submitted that at this phase, the 'solitary confinement' as defined in Sunil Batra v. Delhi Administration And Ors. (1987) 4 SCC 494 had effectively come to an end.
    3. 3rd phase (Since Jan, 2019) - The present barrack has 6 cells. He is allowed to go out of the cell and has no grievances in that regard.

    Additional Advocate General for the State of Karnataka, Mr. Nikhil Goel accepted the report. He informed the Bench that the Superintendent who is at present in-charge of the concerned jail was present before the Bench. After interacting with the Jail Superintendent the Bench noted -

    "In order to ascertain factual aspects of the matter we had the benefit of interaction with the concerned Jail Superintendent who is present today in Court. He accepted the block in question is called Andheri Block and that appellant was kept there till Jan, 2019. He also accepted that only one inmate is kept in a cell in said Andheri Block. It was further stated by him that the petitioner to the present barracks was shifted in 2019 by his predecessor and since the day he joined his duty…the petitioner is confined in the present circumstances. According to him, all the inmates were allowed to go out of the cell in Andheri Block thrice a day, the duration being 2-3 hours each. It was submitted that at about 6:30 am they were taken out and relodged after breakfast to be taken out for lunch, thereafter relodged around 4 o'clock. In sum and substance they would be allowed to come out of the cell, for about 6 hours everyday."


    On the last occasion, Mr. Chaudhary had argued that though the High Court had recorded a finding regarding an avoidable delay of 550 days, it had refused to grant relief to the petitioner. While controverting the same, Mr. Goel, at the outset, put forth certain dates which he thought were relevant to decide the issue of delay.

    01.02.2011 - Judgment of the Supreme Court confirming conviction and sentence was passed

    08.02.2011 - Mercy petition was filed by the petitioner's mother

    01.03.2011 - Review was filed

    09.03.2011 - A writ petition filed under Article 32 seeking open court hearing of the review.

    07.09.2011 - Review petition was dismissed in chamber

    05.10.2012 - Letter was issued by the doctor stating that the petitioner's treatment had ended

    12.05.2013 - The President rejected the mercy petition

    17.05.2013 - The rejection of the mercy petition was communicated

    02.09.2014 - The writ petition seeking open court hearing of the review petition is allowed. 03.10.2016 - By reported judgment review petition is dismissed

    Mr. Goel submitted that the High Court had found that there was a delay of 1year and 5 months on the part of the executive. He asserted that the two principles governing delay are -

    1. The executive should consider the mercy petition as swiftly as possible. No timeline had been provided for the same;
    2. The delay should be directly responsible for halting execution.

    He argued that delay in deciding the mercy petition can be a supervening circumstance for the purpose of commutation when it causes mental agony because the convict is aware that the mercy plea is their last resort.

    "It is that state of mind when he knows that there is no other remedy and he is awaiting execution. That mental state is one of the supervening circumstances to commute."

    To substantiate his argument on the nature of the state of mind that would determine whether delay should be considered as a supervening circumstance or not, he relied on the judgment in Triveniben And Ors. v. State of Gujarat and Shatrughan Chauhan And Anr. v. Union of India And Ors.

    The relevant portion in Triveniben And Ors. v. State of Gujarat referred to by Mr. Goel is as under -

    "Even in this Court, although there does not appear to be a specific rule, normally these matters are given top priority. Although it was contended that this reference before us, a Bench of five-Judges, was listed for heating after a long interval of time. We do not know why this reference could not, be listed except what is generally well-known the difficulty of providing a Bench of five Judges but ordinarily it is expected that even in this Court the matters where the capital punishment is involved will be given top priority and shall be heard of and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any Court before final adjudication even the person who has been condemned or who has been sentenced to death has a ray of hope. It therefore could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms-Day. The delay therefore which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the apex court is pronounced i.e. when the judicial process has come to an end."

    He reminded the Bench that when the writ petition seeking open hearing of the review petitions was admitted on 09.03.2011 a stay was granted which continued till the review petition was finally disposed of in 2016. He submitted -

    "When the mercy petition was considered and a decision was made, a judicial stay was operational. Kindly notice this in the backdrop of the fact that gruesomeness was noticed by the Sessions Court, High Court."

    On the basis of the same he argued that when the mercy petition was rejected, the judicial process was in progress and the stay was operational. Therefore, 'mental agony' as depicted in Triveniben's case or later in Shatrughan Chauhan (supra) for commuting the death sentence would not be applicable in the present case.

    He further submitted that when delay is considered as a supervening circumstance, delay caused due to the time spent on review and repeated mercy petition at the instance of the convicted person cannot be taken into consideration. He cited Triveniben as under -

    "After the matter is finally decided judicially, it is open to the person to approach the President or the Governor, as the case may be, with a mercy petition. Sometimes person or at his instance or at the instance of some of his relatives, mercy petition and review petitions are filed repeatedly causing undue delay in execution of the sentence. It was therefore contended that when such delay is caused at the instance of the person himself he shall not be entitled to gain any benefit out of such delay. It is no doubt true that sometimes such petitions are filed but a legitimate remedy if available in law, a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that alone will be a matter attracting the jurisdiction of this Court, to consider the question of the execution of the sentence. While considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself however shall not be considered. The only delay which would be material for consideration will be the delays in disposal of the mercy petitions or delay occurring at the instance of the Executive."

    He submitted that death row convicts can only challenge events subsequent to the final judicial verdict for infringement of fundamental rights. These subsequent events would include delay in deciding mercy petition as held by the Court in Triveniben -

    "It was contended that the delay in execution of the sentence will entitle a prisoner to approach this Court as his right under Article 21 is being infringed. It is well-settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr., [1966] 3 SCR 744 and also in A.R. Antulay v.R.S. Nayak and another, [1988] 2 SCC 602 the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also."

    Thereafter, to make good his submission on the nature of mental state required to commute death sentence, Mr. Goel referred to the judgment in Shatrughan Chauhan -

    "This is not the first time when the question of such a nature is raised before this Court. In Ediga Anamma vs. State of A.P., 1974(4) SCC 443 Krishna Iyer, J. spoke of the "brooding horror of haunting the prisoner in the condemned cell for years". Chinnappa Reddy, J. in Vatheeswaran (supra) said that prolonged delay in execution of a sentence of death had a dehumanizing effect and this had the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the fundamental right under Article 21 of the Constitution. Chinnappa Reddy, J.quoted the Privy Council's observation in a case of such an inordinate delay in execution, viz., "The anguish of alternating hope and despair the agony of uncertainty and the consequences of such suffering on the mental, emotional and physical integrity and health of the individual has to be seen." Thereby, a Bench of two Judges of this Court held that the delay of two years in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to plead for commutation of sentence of death to imprisonment for life. Subsequently, in Sher Singh (supra), which was a decision of a Bench of three Judges, it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is not good enough for commutation and two years' rule could not be laid down in cases of delay.

    Justice Bhat enquired if the submission made by Mr Goel, in essence, was that the delay in the present case qualitatively differs from other cases because a judicial stay on the execution was operational when the mercy petition was decided by the President. He was concerned that this would be an assumption because the impact on the petitioner's mind might have been the same given the uncertainty of the circumstances.

    "Because the impact can be the same. After all, the sentence of death is hanging. Can we say that this haunts him less?"

    He further added that in the present case there was substantial judicial delay -

    "Here, the maximum delay in the pendency of the High Court."

    Mr. Goel submitted that the law as it stands today, while deciding on supervening circumstances the Court is to look only at the events subsequent to the judicial proceedings. Therefore, the judicial delay would not be a ground of commutation at the present stage.

    Lalit enquired, "So you are saying we must not consider anything which can be put under the phrase 'delay in processes before the court'."

    Mr. Goel reiterated that the Apex Court in Triveniben had segregated the 'anguish' caused by judicial delay from that caused by executive delay and it should be considered accordingly in the present case.

    Justice Bhat noted the significance of the judicial delay in the present case -

    "The interesting part is that here he has been sentenced in 2006, the spectre of death haunts him from that day. These appeals he does not know what will happen. The finality is again after 5 years. It is therefore, the judicial delay…"

    Mr. Goel was of the opinion that if such a view is adopted then death penalty would have no existence. He read out relevant portion from the judgment of Shatrughan Chauhan -

    "In view of the above, we hold that undue long delay in execution of sentence of death will entitle the condemned prisoner to approach this Court under Article 32. However, this Court will only examine the circumstances surrounding the delay that has occurred and those that have ensued after sentence was finally confirmed by the judicial process. This Court cannot reopen the conclusion already reached but may consider the question of inordinate delay to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life.

    Keeping a convict in suspense while consideration of his mercy petition by the President for many years is certainly an agony for him/her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death. Indisputably, this Court, while considering the rejection of the clemency petition by the President, under Article 32 read with Article 21 of the Constitution, cannot excuse the agonizing delay caused to the convict only on the basis of the gravity of the crime.


    From the analysis of the arguments of both the counsel, we are of the view that only delay which could not have been avoided even if the matter was proceeded with a sense of urgency or was caused in essential preparations for execution of sentence may be the relevant factors under such petitions in Article 32."

    In the alternative, Mr. Goel argued that as held in Vatheeswaran v. State of Tamil Nadu a delay of two years in the execution of the sentence after the judgment of the trial would entitle the convict to plead for commutation of death sentence. In the present case, he submitted, the delay was for 1 year 5 months and not 2 years as envisaged by the Apex Court.

    Senior Advocate, Ms. Sonia Mathur appearing on behalf of the Union of India submitted that since the option to avail judicial review was there, the mercy petition cannot be viewed as the last resort. Therefore, when the mercy petition was under consideration there was no real apprehension of execution. She also referred to the judgment of Trivediben as under -

    "The demand for life imprisonment herein as solely based on the ground of prolonged delay in the execution. The delay which is sought to be relied upon by the accused consists of two parts. The first part covers the time taken in the judicial proceedings. It is the time that the parties have spent for trial, appeal, further appeal and review. The second part takes into fold the time utilized by the executive in the exercise of its prerogative clemency.


    I entirely agree. The time taken in the judicial proceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry-up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sentencing or the appellate court while disposing of the appeal may consider the delay and the cause thereof along with other circumstances. The court before sentencing is bound to hear the parties and take into account every circumstance for and against the accused. If the court awards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence save by way of review. There cannot be a second trial on the validity of sentence based on Article 21. The execution which is impugned is execution of a judgment and not apart from judgment. If the judgment with the sentence awarded is valid and binding, it falls to be executed in accordance with law since it is a part of the procedure established by law. Therefore, if the delay in disposal of the case is not a mitigating circumstance for lesser sentence, it would be, in my opinion, wholly inappropriate to fall back upon the same delay to impeach the execution.

    If the delay in passing the sentence render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional. Much less any fixed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fix any period of limitation for execution on the ground that it would be a denial of fairness in procedure under Article 21. With respect, I, am unable to agree with the view taken in Vatheeswaram case on this aspect.

    Under Article 72 of the Constitution, the President shall have the power to "grant pardons, deprives, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted in an offence". Under Article 161 of the Constitution, similar is the power of the Governor to give relief to any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. The Court, therefore, cannot prescribe a time limit for disposal of even for mercy petitions.

    If the Court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay. The matter, therefore, must be expeditiously and on top priority basis, disposed of. The Court while examining the matter, for the reasons already stated, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The Court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under Article 226 or under Article 32 of the Constitution after the final judgment affirming the conviction and sentence. The Court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay, may be a significant factor, but that by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself."

    While considering whether the nature of offence is to be looked into while considering the delay in deciding the mercy plea, as suggested by Justice Shetty in Triveniben, the Bench was of the view that maybe at the stage of considering supervening circumstances, the Court cannot go into the nature and gravity of the offence. In this regard, Justice Bhat stated -

    "Qualitatively there is no distinction between judicial and executive delay. But the court has made that distinction. In view of the same you have to see whether the nature of the crime should sway the Court?"

    Justice Lalit enquired -

    "Can a Court come to a decision, that yes there was unexplained delay, but considering the nature of offence I will not grant you relief. Is it the correct exercise of power?"

    Considering the scope of the law laid down by the Apex Court, Ms. Mathur responded in the negative.

    Justice Lalit noted that Justice Shetty in the Triveniben judgment has referred to a Sanskrit Subhshitam which is relevant to the mental agony of the death row prisoners awaiting execution -

    "Chita Chinta Dwayoormadhya, Chinta tatra gariyasi, Chita Dahati Nirjivam, Chinta dahati Sajeevakam.

    As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire bums only the dead body while the mental worry burns the living one."

    Plea Regarding Mental Health Issue

    Mr. Goel referred to the finding of the High Court, wherein it had recorded that the petitioner had conceded that it is not his case that he is presently suffering from mental health issues. He submitted that the petitioner had not relied on 'mental illness' as a supervening event. The contention of the petitioner, he argued, was limited to the aspect that the Executive's failure to place records of the petitioner's past 'mental illness' before the Governor and President would vitiate the order rejecting the mercy petition.

    Ms. Mathur also submitted that the records reflect that it was pleaded that at the time of commission of the offence he was suffering from 'mental illness' and not at the time of submitting the mercy petition or thereafter. The submission of Mr. Chaudhary that medical records were not made available to the President was refuted by her as she contended that the medical reports were sought by the Centre from the State Government and the same has been recorded.

    Dissenting Opinion Not Made Available to the President

    Mr. Chaudhary had argued that the dissenting opinion of Justice Nayak, who had refused to confirm the death sentence when the matter came up for confirmation before the High Court, was not placed before the President. Therefore, the same would in essence vitiate the rejection of the mercy petition.

    Mr. Goel referred to the guidelines of the Union Government in this regard as referred to by the Apex Court in Shatrughan Chauhan -

    "Though guidelines to define the contours of the power under Article 72/161 cannot be laid down, however, the Union Government, considering the nature of the power, set out certain criteria in the form of circular as under for deciding the mercy petitions.

    • Personality of the accused (such as age, sex ormental deficiency) or circumstances of the case (such as provocation or similar justification);
    • Cases in which the appellate Court expressed doubt as to the reliability of evidence but has nevertheless decided on conviction;
    • Cases where it is alleged that fresh evidence is obtainable mainly with a view to see whether fresh enquiry is justified;
    • Where the High Court on appeal reversed acquittal or on an appeal enhanced the sentence;
    • Is there any difference of opinion in the Bench of High Court Judges necessitating reference to a larger Bench;
    • Consideration of evidence in fixation of responsibility in gang murder case;
    • Long delays in investigation and trial etc."

    He submitted that the guidelines were illustrative in nature. However, he conceded that only the third opinion of Justice Bannurmath confirming the death sentence was placed before the President.

    Justice Lalit noted -

    "What has been placed before the Governor and the President is the order of Justice Bannurmath…The other opinion by Justice Nayak that offence was made out but sentence of life and not death is not there."

    Justice Bhat opined that the reason provided by Justice Nayak to not confirm the death sentence is relevant.

    Justice Narasimha stated that the very fact that there was a divergent view had to be indicated to the President -

    "The members of judiciary had a different view that factor itself had to be highlighted, not even the merits of it."

    Ms. Mathur addressed the concern of the Bench by submitting that the President had sought documents like the medical reports when they thought it was necessary to consider the mercy plea. She argued -

    "The judgments placed before the President clearly indicated that there was a dissent, so when medical records could be called for, if the President thought it fit he could have also called for the dissenting judgment. The very fact he did not call for it would indicate that it was not necessary for consideration."

    Justice Lalit pointed out that to complete the record, documents are often sought by the departmental officers. He was of the view that it was possible that the medical reports were not sought by the President but at the departmental level by some officer.

    He categorically asked Ms. Mathur, "Did the President call for the reports?"

    Justice Lalit remarked, "Is it sufficient to say that the President could have called for?"

    Justice Bhat stated that relevance is an objective factor and cannot be solely based on necessity.

    Ms. Mathur contended that Mr. Chaudhary had only argued on the strength of the circular in Shatrughan Chauhan, which are internal guidelines and have no statutory force.

    Justice Bhat observed that the Government cannot be permitted to pick and choose provision of the guidelines as per its whims. In administrative law even if guidelines have no force of law they are to be adhered to for the simple reason that if permitted otherwise it would be open for the Executive to pick and choose in violation of Article 14 of the Constitution.

    Justice Lalit stated -

    "According to us it was only the summary note which was placed before the President, because the records run into a lot of pages. This note does not include a paragraph that there was a dissent."

    Justice Narasimha noted that as held in S.R. Bommai v. Union of India judicial scrutiny extends to the consideration if relevant material was placed before the President or not.

    As Ms. Mathur emphasised on the argument that the guidelines are not enforceable, Justice Bhat asked her -

    "Consider there is no guideline. Going by logic, there is plurality in confirmation of sentence, can you say that this is a factor that I will ignore."

    Ms Mathur argued that the relevance of the said judgment might have diminished manifold after it was overturned by the Supreme Court in appeal and later in review.

    "The relevance of that opinion has to be also tested because later it was subsumed in the order of this Court."

    Ms. Mathur submitted that if the Bench was satisfied that the dissenting opinion ought to have been considered, the mercy petition can be remanded in terms of the judgment in Kehar Singh v. Union of India. The relevant position is as under -

    "The next question is whether the petitioner is entitled to an oral hearing from the President on his petition invoking the powers under Article 72. It seems to us that there is no right in the condemned person to insist on an oral hearing before the President. The proceeding before the President is of an executive character, and when the petitioner files his petition it is for him to submit with it all the requisite information necessary for the disposal of the petition. He has no right to insist on presenting an oral argument. The manner of consideration of the petition lies within the discretion of the President, and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal. The President may consider sufficient the information furnished before him in the first instance or he may send for further material relevant to the issues which he considers pertinent, and he may, if he considers it will assist him in treating with the petition, give an oral hearing to the parties. The matter lies entirely within his discretion. As regards the considerations to be applied by the President to the petition, we need say nothing more as the law in this behalf has already been laid down by this Court in Maru Ram's case (supra).


    In the result, having regard to the view taken by us on the question concerning the area and scope of the President's power under Article 72 of the Constitution, we hold that the petition invoking that power shall be deemed to be pending before the President to be dealt with and disposed of afresh. The sentence of death imposed on Kehar Singh shall remain in abeyance meanwhile. These Writ Petitions and the Special Leave Petition are concluded accordingly."

    Mr. Chaudhary objected to the submission of remanding the mercy petition. He stated that as per the law laid down in Shatrughan Chauhan, the same was not permitted. The relevant partition of the judgment in Shatrughan Chauhan is as under -

    "...The question of violation of Article 21, its effects and the appropriate relief is the domain of this Court. There is no question of remanding the matter for consideration because this Court is the custodian and enforcer of fundamental rights and the final interpreter of the Constitution. Further, this Court is best equipped to adjudicate the content of those rights and their requirements in a particular fact situation. This Court has always granted relief for violation of fundamental rights and has never remanded the matter. For example, in cases of preventive detention, violation of free speech, externment, refusal of passport etc., the impugned action is quashed, declared illegal and violative of Article 21, but never remanded. It would not be appropriate to say at this point that this Court should not give relief for the violation of Article 21."

    To substantiate her argument that the President is the sole judge of the sufficiency of material before them while considering the mercy petition, she relied on Epuru Sudhakar And Anr. v. Govt. of A.P. and Vijay Sharma v. Union of India.

    Epuru Sudhakar And Anr. v. Govt. of A.P. -

    "Exercise of Executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public consideration alone. The President and the Governor are the sole judges of the sufficiency of facts and of the appropriating of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of Exclusive Cognizance would not apply when and if the decision impugned is in derogation of a Constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutation."

    Vijay Sharma v. Union of India -

    "The alleged suffering of the petitioner in the prison cannot be a ground for judicial review of the executive order passed under Article 72 of the Constitution of India rejecting petitioner's mercy petition. As per the settled legal position in Narayan Dutt and Others vs. State of Punjab and Another(2011) 4 SCC 353 and Epuru Sudhakar, exercise of power under Articles 72 and 161 of the Constitution of India is subject to challenge only on the grounds indicated thereon. When the highest constitutional authority, upon perusal of the Note and the various documents placed along with mercy petition, has taken a decision to reject the mercy petition, it cannot be contended that the highest constitutional authority had not applied its mind to the documents."

    Case Title: B.A. Umesh v. Union of India SLP (C) 890 of 2022

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