http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: G. KRISHTA GOUD & J. BHOOMAIAH

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT03/10/1975

BENCH:

ACT:      Constitution  of   India,  1950,   Art.   72-Scope   of President’s power-Power  of review  of Presidents’ action by Courts.

HEADNOTE:      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: (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. [76 E-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 D-E].

JUDGMENT:      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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

    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 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  [1974]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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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 political offences. 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) [1961] 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

    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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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  leave petition. V.P.S.                                   Petition dismissed. 78