REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

REVIEW PETITION (C) NO.1378 OF 2009 IN  

WRIT PETITION (C) NO.457 OF 2005

Remdeo Chauhan @ Rajnath Chauhan  ..Petitioner(s)

Versus  

Bani Kant Das & Others  ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. This case has a chequered background. The facts,  

therefore,  are  to  be  appreciated  in  their  

sequence.

2. A  criminal  case  was  registered  against  the  

petitioner  under  section  302  IPC,  on  an  FIR  

lodged  by  Bani  Kant  Das  (first  respondent),  

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elder  brother  of  Bhabani  Charan  Das  (the  

deceased), in view of the offences committed by  

the petitioner on 8.3.1992. After investigation  

and preparation of charge sheet, the case was  

committed for trial to the Court of Sessions and  

charges were framed against the petitioner under  

Sections 302, 323, 325 and 326 of IPC.

3. On  31.3.1998,  the  Trial  Court  held  the  

petitioner guilty of murdering four members of  

Bhabani  Charan  Das’s  family  and  that  all  the  

charges under Sections 302, 323, 325 and 326 of  

IPC  against  him  were  proved  beyond  all  

reasonable doubt. The Trial Court also opined  

that  the  crime  fell  within  the  category  of  

‘rarest  of  rare  cases’  and  the  petitioner  

deserved death penalty.

4. However, the defence raised the plea that at the  

time of commission of the crime, the petitioner  

was  below  16  years  of  age.  To  determine  the  

actual  age  of  the  petitioner,  Dr.  Bhushan  

Chandra  Roy,  Associate  Professor  of  Forensic  

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Medicine  of  Guwahati  Medical  College,  with  a  

team of doctors, examined him on 23.12.1997. The  

defence examined the father of the petitioner,  

Mr. Firato Chauhan and also placed reliance on  

the  school  admission  register.  The  school  

register was held to be unreliable, as it was  

not  properly  maintained.  Further,  the  

petitioner’s  father  estimated  the  petitioner’s  

age to be 19 years at the time of occurrence of  

the crime.

5. However,  on  the  basis  of  the  physical  and  

radiological examination done of the petitioner,  

the doctor was definitely of the opinion that  

his age was above 20 years but could not be more  

than 21 years on the date of the examination.  

This  examination  was  conducted  more  than  5½  

years after the date of commission of the crime.

6. Dr. Bhushan Chandra Roy, who was a prosecution  

witness, subjected the petitioner to scientific  

tests including radiological tests. The medical  

opinion of Dr. Bhushan Chandra Roy was a joint  

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opinion  and  he  consulted  the  doctor  in  the  

Department of Radiology and Dr. Kanak Chandra  

Das,  the  Medical  Officer  on  duty  in  the  

Department of Radiology.

7. About  the  age  of  the  petitioner,  trial  Court  

accepted  the  opinion  of  the  team  of  doctors  

headed by Dr. Bhushan Chandra Roy.

8. The Trial Court’s finding about the age of the  

petitioner is as follows:

“On the basis of the physical examination  and  radiological  examination  done  on  Ramdeo  Chauhan  alias  Raj  Nath  Chauhan,  they are of opinion that the age of the  individual is above 20 years.”

9. The Trial Court, after considering the medical  

evidence about the age of the petitioner along  

with  the  evidence  of  the  father  of  the  

petitioner, came to the following conclusion:

“Then the accused cannot be below sixteen  years  of  age  at  the  time  of  alleged  occurrence  to  attract  the  provisions  of  Juvenile Justice Act, 1986 as the alleged  occurrence took place before six years.”

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10. On  appeal  by  the  petitioner,  the  High  Court,  

vide its judgment dated 1.2.1999, confirmed the  

conviction  and  sentence  of  death  against  the  

petitioner. Before the High Court the Counsel  

for the petitioner specifically submitted, that  

he was not challenging the finding of the Trial  

Court  on  the  point  of  age  of  the  accused-

petitioner.

11. The  appeal  from  the  High  Court  judgment  was  

dismissed by a Bench of this Court, comprising  

K.T. Thomas and R.P. Sethi, JJ, on 31.7.2000 and  

death  sentence  was  upheld.  In  that  judgment,  

this court did not advert to the question of age  

of the petitioner as it was possibly not argued.

12. A review petition (hereinafter, the first review  

petition) was filed against the abovementioned  

judgment of this Court. After notice was issued,  

a two Judge Bench of this Court held that the  

question of conviction of the petitioner under  

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section  302  IPC  cannot  be  reopened.  However,  

considering the fact that the petitioner raised  

an important question that he was a juvenile at  

the  relevant  time  and  there  is  a  legal  

prohibition against sentencing a juvenile, the  

first review petition was referred to a larger  

Bench  comprising  K.T.  Thomas,  R.P.  Sethi  and  

S.N. Phukan, JJ.

13. In the larger Bench decision dated 10.5.2001,  

Sethi, J., inter-alia, held- “From the evidence  

produced  and  the  material  placed  before  the  

courts below, there is not an iota of doubt in  

my mind to hold that the petitioner was not a  

child or near or about the age of being a child  

within the meaning of the Juvenile Justice Act  

or the Children Act.”

14. Thomas,  J  gave  a  dissenting  judgment  with  

respect to imposition of death sentence upon the  

accused. His Lordship observed that the Court  

had already held on facts that the petitioner  

had been unable to prove that he was below 16  

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years of age on the date of the crime. However,  

Thomas  J.  approached  the  question  from  a  

different  angle  and  questioned  whether  death  

sentence could be awarded to a person whose age  

was  not  positively  established  by  the  

prosecution  as  above  16  years  on  the  crucial  

date? The learned Judge opined that if the age  

of  the  petitioner  could  not  be  held  to  be  

unquestionably  above  16  on  the  relevant  date  

(and there was a doubt created in view of the  

medical report of Dr. Bhushan Chandra Roy), its  

corollary  was  that  the  lesser  sentence  also  

could not unquestionably be foreclosed, as per  

the Constitution Bench judgment in the case of  

Bachan Singh v. State of Punjab, [(1982) 3 SCC  24].  Thus,  the  learned  Judge  opined  that  the  

sentence  of  death  be  altered  to  one  of  

imprisonment for life.

15. Phukan,  J.,  gave  a  concurring  opinion  with  

Sethi,  J.  and  opined  that  the  imposition  of  

sentence  of  death  could  not  be  reopened  on  

review. However, His Lordship observed that if  

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any motion was made in terms of Sections 432,  

433 and 433A of the Code of Criminal Procedure  

and/or  Article  72  or  Article  161  of  the  

Constitution,  the  same  may  be  appropriately  

dealt with.

16. In the words of Phukan, J., “the factors which  

have weighed with my learned Brother Mr. Justice  

Thomas can be taken note of in the context of  

section 432(2) of the Code.”

17. Even  before  the  judgment  on  the  first  review  

petition  was  pronounced  on  10.5.2001,  the  

petitioner  had  already  filed  on  17.8.2000  a  

petition before the Governor of Assam praying  

for  mercy  and  for  commutation  of  his  death  

sentence to one of life imprisonment.

18. At about the same time when the petition for  

commutation  was  pending,  Dr.  Ved  Kumari,  

Professor of the Faculty of Law, University of  

Delhi, wrote a fairly detailed article titled  

“Has a child been executed in India?” The said  

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article  came  to  be  noticed  by  National  Human  

Rights Commission (NHRC). Thereupon, NHRC sent a  

notice to Dr. Ved Kumari. In the meantime, the  

judgment in the review petition, as aforesaid,  

was pronounced by this Court on 10.5.2001.

19. On  21.5.2001,  the  full  Commission  of  NHRC,  

consisting of the Chairperson, Mr. Justice J.S.  

Verma,  as  also  two  of  its  judicial  members,  

namely, Dr. Justice K. Ramaswany and Justice Ms.  

Sujata   

V. Manohar, and the other member Sri Virendra  

Dayal,  held  its  proceedings,  in  which  the  

judgment rendered in the review proceeding was  

perused.

20. NHRC, upon considering the materials on record,  

made the following recommendations:

“The Commission is of the view that the  above  opinion  of  Thomas,  J.  in  the  judgment disposing of the review petition  and  the  above  quoted  observations  of  Phukan,  J.  are  very  strong  reasons  to  support the view and this is a fit case  for commutation of the sentence of Ram Deo  Chauhan @ Raj Nath Chauhan in the above  

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case  from  death  sentence  to  that  of  imprisonment for life. This Commission is  of  the  considered  view  that  the  case,  placing reliance on the views of Thomas,  J. and Phukan, J., who were two of the  three  learned  Judges,  constituting  the  Bench  deserves  the  highest  consideration  by  the  executive  authority  while  considering the question of commutation of  sentence of the said Ram Deo Chauhan @ Raj  Nath Chauhan.  

Accordingly,  this  Commission  makes  the  above  recommendation  in  terms  of  the  opinion  of  Thomas,  J.  for  due  consideration  by  the  Governor  of  Assam  and/or the President of India, as the case  may be, in the event of a mercy petition  being filed for the purpose.”

21. Thereafter, on 28.1.2002, the Governor of Assam  

commuted the death sentence of the petitioner to  

one  of  life  imprisonment.  The  Order  of  the  

Governor runs as under:

“The  Governor  of  Assam  after  careful  consideration  of  the  mercy  petition  and  other  relevant  records  is  pleased  to  commute the sentence of death to that of  imprisonment for life of the above named  condemned prisoner.”

22. Challenging the aforesaid order of the Governor,  

of Assam, the relatives of the deceased filed a  

writ  petition  under  Article  32  of  the  

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Constitution of India before this Court. In that  

proceeding,  Secretary  NHRC  was  impleaded.  

However,  this  court,  by  an  order  dated  

21.1.2009, issued notice to Prof. Ved Kumari,  

asking  her  to  state  how  her  complaint  before  

NHRC was maintainable. Pursuant thereto, Prof.  

Ved Kumari submitted an affidavit before this  

Court  on  3.2.2009,  stating  that  the  Juvenile  

Justice  (Care  &  Protection  of  Children)  Act,  

2000  applied  to  all  pending  cases  and  was  

extended to all children who had not completed  

18  years  of  age;  and  thus  it  would  also  be  

applicable to the present case.

23. After hearing the matter, the Bench comprising  

of  one  of  us  passed  an  order  on  8.5.2009,  

setting  aside  the  Governor’s  order  dated  

28.1.2002 of commutation of death sentence to  

life imprisonment.  

24. In  passing  that  order,  the  Bench  was  of  the  

opinion that the NHRC proceedings were not in  

line with the procedure established under the  

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Protection  of  Human  Rights  Act,  1993  

(hereinafter,  ‘the  1993  Act’)  and  therefore,  

NHRC’s recommendations were void. Further, the  

order  of  the  Governor  of  Assam  directing  

commutation did not indicate any reason and was  

based  on  the  recommendations  of  NHRC,  which  

itself were without jurisdiction. Thus, the writ  

petition  was  allowed  and  the  order  of  the  

Governor  of  Assam  was  quashed  and  this  Court  

directed  re-consideration  afresh  of  the  

petitioner’s prayer for commutation of sentence.

25. This instant review petition (hereinafter, the  

second review) is directed against this Court’s  

order dated 8.5.2009.

26. In this second review, notice was issued by this  

Bench for formal hearing by an order dated 3rd  

September, 2009. One of the reasons for issuing  

notice was that one of the grounds put forward  

was that the judgment under review was passed  

without hearing Ram Deo Chauhan, the petitioner,  

and without providing him legal aid. However,  

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almost at the conclusion of the hearing of this  

proceeding, this Court found that the aforesaid  

representation  was  not  correct.  The  correct  

position  was  that  by  an  order  dated  19th  

November, 2005, Mr. Muralidhar was appointed by  

the  Registrar  of  this  Court  to  represent  the  

petitioner. After Mr. Muralidhar, became a Judge  

of Delhi High Court, the Registrar appointed one  

Mr. Vijay Panjwani, an advocate of this Court,  

to represent the review petitioner. Mr. Panjwani  

filed  a  counter  affidavit  in  the  Article  32  

proceeding.  However,  from  the  judgment  under  

review,  it  does  not  appear  that  Mr.  Panjwani  

appeared  before  the  Court  and  made  his  

submissions.

27. Be that as it may, it is not correct to say that  

no  notice  was  given  to  the  petitioner.  

Therefore, one of the grounds on which notice  

for review was issued became non-existent.  

28. The  question  is  whether  this  second  review  

should be dismissed in view of such misleading  

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stand having been taken by the petitioner while  

invoking this Court’s jurisdiction of review.  

29. On a very careful consideration of this issue,  

this Court thinks that in view of various other  

questions of far reaching importance having been  

raised  in  this  second  review,  it  may  be  a  

travesty  of  justice  if  this  petition  is  

dismissed on only the ground mentioned above.

30. This  Court  on  a  contested  hearing  is  of  the  

opinion that the second review should still be  

entertained  and  decided  as  it  raises  various  

questions of signal significance, touching the  

rights of the petitioner to seek commutation as  

also  touching  questions  regarding  the  

jurisdiction  of  the  NHRC,  as  also  various  

constitutional provisions relating to life and  

freedom.  Various  concerns  of  public  law  have  

come up for consideration in this second review  

and  in  the  context  of  these  issues  the  

constitutional  provision  of  Article  137  for  

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review of judgment and order of this Court may  

have  to  be  examined.  Article  137  of  the  

Constitution provides as follows:

“137. Review of judgments or orders by the  Supreme Court: Subject to the provisions  of any law made by Parliament or any rules  made under article 145, the Supreme Court  shall  have  power  to  review  any  judgment  pronounced or order made by it.

31. In terms of Article 137, Rules have been framed  

under Article 145 of the Constitution and Part  

VIII  Order  XL  of  the  said  Rules  deals  with  

review.  

32. Order XL Rule 1 provides that in reviewing the  

judgment in a civil proceeding, the Court will  

follow the grounds in Order XLVII Rule 1 of the  

CPC.  However,  in  case  of  review  of  criminal  

proceedings, no review is permissible except on  

the ground of error apparent on the face of the  

record.

33. The extent of the review power of this Court  

came up for consideration in several cases. In  

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M/s     Northern  India  Caterers  (India)  Ltd  .  v.  Lieutenant Governor of Delhi reported in 1980  (2) SCC 167, a three Judge Bench of this Court  

examined the scope of this power and held that  

if the attention of the Court is not drawn to  

any  material  statutory  provision  during  the  

original hearing, that is a ground of review.  

The Court also held that it may reopen its own  

judgment if a manifest wrong has been done and  

it is necessary to pass an order to do full and  

effective justice.

34. In Ram Chandra Singh v. Savitri Devi and others  reported  in  2004  (12)  SCC  713,  this  Court  

dealing with its power of review held in para  

19:  

“19.It  is  no  doubt  true  that  in  appropriate cases this Court may pass an  order  ex  debito  justitiae  by  correcting  mistakes  in  the  judgment  but  inherent  power of this Court can be exercised only  when  there  does  not  exist  any  other  provision in that behalf……”

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35. In a three Judge Bench of this Court in the case  

of  Suthendra Raja alias Suthenthira Raja alias  Santhan & Ors.  v. State through DSP/CBI, SIT,  Chennai reported in 1999 (9) SCC 323, this Court  held  that  the  scope  of  review  in  criminal  

proceedings has been considerably widened in the  

P.N.  Eswara  Iyer  and  others v. Registrar,  Supreme Court of India [1980 (4) SCC 680]. To  maintain a review in a criminal case, what has  

to be considered is whether there has been a  

miscarriage of justice.

36. In this connection, this Court finds that in the  

Supreme Court Rules framed under Article 145 of  

the Constitution, there is a clear provision in  

Order XL Rule 6 of the Rules to the following  

effect:

“6. Nothing in these Rules shall be deemed  to limit or otherwise affect the inherent  powers of the Court to make such orders as  may be necessary for the ends of justice  or to prevent abuse of the process of the  Court.”   

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37. In  Girdhari  Lal  Gupta v. D.N.  Mehta  &  Anr.  reported in AIR 1971 SC 2162, this Court held  

when the attention of this Court is not drawn to  

any  particular  provision  of  a  statute,  this  

court can review the decision and it is not the  

case of a mere mistaken judgment. (Para 16, pg  

2164)

38. On a bare reading of the provision of Order XL  

Rule 1 of the Supreme Court Rules, one may get  

the  impression  that  the  extent  of  review  in  

criminal cases is more restricted than in civil  

cases. But the said impression has been given a  

quietus by this Court in its Constitution Bench  

judgment in Eswara case (supra).

39. Delivering  the  main  judgment,  Justice  Krishna  

Iyer held- “So it is reasonable to assume that  

the framers of the rules could not have intended  

a  restrictive  review  over  criminal  orders  or  

judgments.  It  is  likely  to  be  the  other  way  

about.  Supposing  an  accused  is  sentenced  to  

death by the Supreme Court and the ‘deceased’  

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shows up in court and the court discovers the  

tragic treachery of the recorded testimony. Is  

the court helpless to review and set aside the  

sentence of hanging? We think not. The power to  

review is in Article 137 and it is equally wide  

in all proceedings. The Rule merely canalizes  

the flow from the reservoir of power. The stream  

cannot stifle the source. Moreover, the dynamics  

of interpretation depend on the demand of the  

context and the lexical limits of the test. Here  

‘record’ means any material which is already on  

record or may, with the permission of the court,  

be  brought  on  record.  If  justice  summons  the  

judges to allow a vital material in, it becomes  

part of the record; and if apparent error is  

there,  correction  becomes  necessitous.”  (See  

para 34, pg. 695)

40. Keeping  those  parameters  in  mind,  let  us  

consider the extent to which power of review can  

be extended in the facts of this second review.  

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41. In  our  view  several  aspects  of  this  Court’s  

judgment dated 8.5.2009, rendered on the Article  

32 petition, call for a review.

42. In the judgment which is under review in the  

second review petition, the Court concluded:  

(a) NHRC has no jurisdiction to interfere  and make a recommendation, and  

(b) The order of the Governor in commuting  the sentence of death to one of life  is bad in law as it did not disclose  any reason.  

43. On a review, we are constrained to hold that  

both findings on (a) and (b) are vitiated by  

errors apparent on the face of the record.

A.Jurisdiction of NHRC

44. The NHRC was constituted under Section 3 of the  

1993 Act for better protection of human rights.  

The term ‘human rights’ as defined in Section  

2(d) of the 1993 Act, reads as follows:

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“2.  (d) "Human  rights" means  the  rights  relating  to  life,  liberty,  equality  and  dignity  of  the  individual  guaranteed  by  the  Constitution  or  embodied  in  the  International Covenants and enforceable by  courts in India.”

45. The  functions  of  NHRC  have  been  set  out  in  

Section 12 of the 1993 Act. Section 12 reads as  

follows:

“12.  Functions  of  the  Commission-  The  Commission shall perform all or any of the  following functions namely:

a. inquire,  suo  motu  or  on  a  petition  presented  to  it  by  a  victim  or  any  person on his behalf or on a direction  or order of any court, into complaint of

(i) violation of human rights or abetment  thereof; or

(ii) negligence in the prevention of such  violation, by a public servant;

b.intervene  in  any  proceeding  involving  any  allegation  of  violation  of  human  rights pending before a court with the  approval of such court;

c.  visit,  notwithstanding  anything  contained in any other law for the time  being  in  force,  any  jail  or  other  institution  under  the  control  of  the  State  Government,  where  persons  are  detained  or  lodged  for  purposes  of  

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treatment,  reformation  or  protection,  for the study of the living conditions  of  the  inmates  thereof  and  make  recommendations  thereon  to  the  Government;

d.review  the  safeguards  provided  by  or  under  the Constitution  or any  law for  the  time  being  in  force  for  the  protection of human rights and recommend  measures  for  their  effective  implementation;

e. review  the  factors,  including  acts  of  terrorism, that inhibit the enjoyment of  human  rights  and  recommend  appropriate  remedial measures;

f.study  treaties  and  other  international  instruments  on  human  rights  and  make  recommendations  for  their  effective  implementation;

g.undertake  and  promote  research  in  the  field of human rights;

h.spread  human  rights  literacy  among  various sections of society and promote  awareness  of  the  safeguards  available  for  the  protection  of  these  rights  through  publications,  the  media,  seminars and other available means;

i.encourage  the  efforts  of  non- governmental  organization  and  institutions  working  in  the  field  of  human rights;

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j. such other functions as it may consider  necessary  for  the  promotion  of  human  rights.”

46. The NHRC has been constituted to inquire into  

cases  of  violation  of  and  for  protection  and  

promotion  of  human  rights.  This  power  is  an  

extensive  one,  which  should  not  be  narrowly  

viewed.

47. It must be jurisprudentially accepted that human  

right  is  a  broad  concept  and  cannot  be  

straitjacketed  within  narrow  confines.  Any  

attempt  to  do  so  would  truncate  its  all-

embracing scope and reach, and denude it of its  

vigour and vitality. That is why, in seeking to  

define human rights, the Legislature has used  

such a wide expression in section 2(d) of the  

Act. It is also significant to note that while  

defining the powers and functions of NHRC under  

section 12 of the Act, the said broad vision has  

been  envisioned  in  the  residuary  clause  in  

Section 12(j).

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48. Therefore,  it  is  imperative  that  while  

interpreting  the  powers  and  jurisdiction  of  

NHRC, the Court construes section 2(d) of the  

1993 Act along with its long title and also the  

Statement  of  Objects  and  Reasons  of  the  said  

Act. The relevant portion of the statement of  

objects and reasons are excerpted below:  

“2.  However,  there  has  been  growing  concern  in  the  country  and  abroad  about  issues  relating  to  human  rights.  Having  regard to this, changing social realities  and the emerging trends in the nature of  crime  and  violence,  Government  has  been  reviewing  the  existing  laws,  procedures,  and system of administration of justice;  with  a  view  to  bringing  about  greater  accountability  and  transparency  in  them,  and  devising  efficient  and  effective  methods of dealing with the situation.”

49. In his Tagore Law Lecture (The Dialectics and  

Dynamics of Human Rights in India), Justice V.R.  

Krishna Iyer describes the width and sweep of  

human rights in his matchless words and which  

are worth quoting:

“Human rights are writ on a large canvas,  as  large  as  the  sky.  The  law  makers,  

24

lawyers and particularly, the judges, must  make the printed text vibrant with human  values, not be scared of consequences on  the  status  quo order.  The  militant  challenges of today need a mobilization of  revolutionary  consciousness  sans  which  civilized  systems  cease  to  exist.  Remember,  we  are  all  active  navigators,  not idle passengers, on spaceship earth as  it  ascends  to  celestial  levels  of  the  glorious human future.”

50. We share the same view.

51. What was said by Alexander Hamilton, the great  

constitutional expert and political philosopher,  

way back in 1775, is poignant still today for  

having a clear perception of what human rights  

are. The words of Hamilton still resonate with a  

strange relevance and immediacy, and are quoted  

below:

“The sacred rights of mankind are not to  be rummaged for, among old parchments, or  musty records. They are written, as with a  sun  beam  in  the  whole  volume  of  human  nature,  by  the  hand  of  divinity  itself;  and  can  never  be  erased  or  obscured  by  mortal power.”

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52. Keeping those broad principles in our mind if we  

look at Section 12(j) of the 1993 Act, we find  

that it confers on NHRC “such other functions as  

it may consider necessary for the promotion of  

human rights.” It is not necessary that each and  

every case relating to the violation of human  

rights will fit squarely within the four corners  

of section 12 of the 1993 Act, for invoking the  

jurisdiction of the NHRC. One must accept that  

human rights are not like edicts inscribed on a  

rock. They are made and unmade on the crucible  

of experience and through irreversible process  

of human struggle for freedom. They admit of a  

certain degree of fluidity. Categories of human  

rights,  being  of  infinite  variety,  are  never  

really closed. That is why the residuary clause  

in sub-section (j) has been so widely worded to  

take  care  of  situations  not  covered  by  sub-

sections (a) to (i) of Section 12 of the 1993  

Act.  The  jurisdiction  of  NHRC  thus  stands  

enlarged by section 12(j) of the 1993 Act, to  

take  necessary  action  for  the  protection  of  

human  rights.  Such  action  would  include  

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inquiring  into  cases  where  a  party  has  been  

denied the protection of any law to which he is  

entitled, whether by a private party, a public  

institution, the government or even the Courts  

of law. We are of the opinion that if a person  

is entitled to benefit under a particular law,  

and benefits under that law have been denied to  

him, it will amount to a violation of his human  

rights.  

53. Human rights are the basic, inherent, immutable  

and  inalienable  rights  to  which  a  person  is  

entitled simply by virtue of his being born a  

human. They are such rights which are to be made  

available as a matter of right. Constitution and  

Legislations of civilized country recognise them  

since they are so quintessentially part of every  

human  being.  That  is  why  every  democratic  

country committed to rule of Law put into force  

mechanisms for their enforcement and protection.  

Human  rights  are  universal  in  nature.  The  

Universal  Declaration  of  Human  Rights  

(hereinafter referred to as UDHR) adopted by the  

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General Assembly of the United Nations on 10th  

December  1948  recognizes  and  requires  the  

observance  of  certain  universal  rights,  

articulated  therein,  to  be  human  rights,  and  

these are acknowledged and accepted as equal and  

inalienable  and  necessary  for  the  inherent  

dignity  and  development   of  an  individual.  

Consequently,  though  the  term  ‘human  rights’  

itself has not been defined in UDHR, the nature  

and content of human rights can be understood  

from the rights enunciated therein.

54. Possibly  considering  the  wide  sweep  of  such  

basic rights, the  definition of ‘human rights’  

in the 1993 Act has been designedly kept very  

broad  to encompass within it all the rights  

relating to life, liberty, equality and dignity  

of the individual guaranteed by the Constitution  

or embodied in the International Covenants and  

enforceable by Courts in India.  

55. Thus, if a person has been guaranteed certain  

rights either under the Constitution or under an  

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International Covenant or under a law, and he is  

denied access to such a right, then it amounts  

to a clear violation of his human right and NHRC  

has the jurisdiction to intervene for protecting  

it.  

56. The  contrary  finding  in  the  judgment  under  

review about the absence of jurisdiction of NHRC  

to make some recommendations to the Governor is  

thus vitiated by errors apparent on the face of  

the record. Of course NHRC cannot intervene in  

proceeding pending in Court without its approval  

[Section 12(6)] as it is assumed that Court will  

remedy any case of violation of human rights.

57. The assumption in the judgment under review that  

there can be no violation of a person’s human  

right by a judgment of this Court is possibly  

not  correct.  This  Court  in  exercise  of  its  

appellate  jurisdiction  has  to  deal  with  many  

judgments of High Courts and Tribunals in which  

the  High  Courts  or  the  Tribunals,  on  an  

erroneous  perception  of  facts  and  law,  have  

29

rendered decisions in breach of human rights of  

the parties and this Court corrects such errors  

in those judgments.

58. The instances of this Court’s judgment violating  

the  human  rights  of  the  citizens  may  be  

extremely rare but it cannot be said that such a  

situation can never happen.  

59. We can remind ourselves of the majority decision  

of  the  Constitution  Bench  of  this  court  in  

Additional  District  Magistrate  Jabalpur v.  Shivakant Shukla reported in (1976) 2 SCC 521.  

60. The majority opinion was that in view of the  

Presidential order dated 27.6.1975 under Article  

359(1) of the Constitution, no person has the  

locus  standi  to  move  any  writ  petition  under  

Article  226  before  a  High  Court  for  Habeas  

Corpus or any other writ to enforce any right to  

personal liberty of a person detained under the  

then law of preventive detention{ Maintenance of  

Internal Security Act of 1971}, on the ground  

30

that the order is illegal or malafide or not in  

compliance with the Act.(See paras 78 and 136 of  

the report)

61. The  lone  dissenting  voice  of  Justice  Khanna  

interpreted  the  legal  position  differently  by  

inter alia holding:  

“(8)  Article  226  under  which  the  High  Courts can issue writs of Habeas Corpus is  an integral part of the Constitution. No  power  has  been  conferred  upon  any  authority  in  the  Constitution  for  suspending the power of the High Court to  issue writs in the nature of habeas corpus  during  the  period  of  emergency.  Such  a  result cannot be brought about by putting  some  particular  construction  on  the  Presidential  order  in  question.”(Point  8  at page 777 of the report)

62. There is no doubt that the majority judgment of  

this  court  in  the  ADM  Jabalpur case  (supra)  violated  the  fundamental  rights  of  a  large  

number of people in this country.  Commenting on  

the  majority  judgment,  Chief  Justice  

Venkatachalliah in the Khanna Memorial Lecture  

delivered on 25.2.2009, observed that the same  

be  ‘confined  to  the  dustbin  of  history.’  The  

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learned Chief Justice equated Justice Khanna’s  

dissent  with  the  celebrated  dissent  of  Lord  

Atkins  in  Liversidge v. Sir  John  Anderson  reported in (1942) AC 206.

63. In fact the dissent of Justice Khanna became the  

law of the land when, by virtue of the Forty  

Fourth Constitutional Amendment, Articles 20 and  

21 were excluded from the purview of suspension  

during emergency.

64. But we hasten to add that NHRC cannot function  

as  a  parallel  seat  of  justice  to  rectify  or  

correct or comment upon orders passed by this  

Court  or  any  other  Courts  of  competent  

jurisdiction.  For  correcting  an  order  in  a  

judicial proceeding, the aggrieved party has to  

avail  of  the  well  established  gamut  of  the  

corrective  machinery  of  appeal,  revision,  

review, curative petition and so on.

65. In fact in this case the NHRC did not send any  

recommendation  as  long  as  the  first  review  

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proceedings were pending in this court. The NHRC  

was keeping a track of the proceeding in the  

Court.  From  its  order  dated  16.10.09,  it  is  

revealed  that  NHRC  was  aware  that  a  review  

petition was filed against the judgment of this  

Court in Criminal Appeal No. 4/2000, in addition  

to a mercy petition filed before the Governor of  

Assam. The NHRC closely followed the proceedings  

of the review petition.  

66. The NHRC made its recommendations on 21.5.2001  

only  after  the  judgment  in  first  review  

(No.1105/2000) was passed on 10.5.2001 by this  

Court.

67. About NHRC, this Court in Paramjit Kaur v. State  of Punjab and Ors. – (1999) 2 SCC 131 held:

“10. The Commission headed by a former  Chief Justice of India is a unique expert  body  in  itself.  The  Fundamental  Rights,  contained in Part III of the Constitution  of India, represent the basic human rights  possessed  by  every  human  being  in  this  world  inhabited  by  people  of  different  continents, countries, castes, colours and  religions. The country, the colour and the  

33

religion  may  have  divided  them  into  different groups but as human beings, they  are all one and possess the same rights.”

11. The Chairman of the Commission, in  his capacity as a Judge of the High Court  and then as a Judge of this Court and also  as the Chief Justice of India, and so also  two  other  members  who  have  held  high  judicial offices as Chief Justices of the  High Courts, have throughout their tenure,  considered,  expounded  and  enforced  the  Fundamental Rights and are, in their own  way, experts in the field. The Commission,  therefore,  is  truly  an  expert  body  to  which a reference has been made by this  Court in the instant case.”

68. After the aforesaid observations this court decided  

that when in exercise of its power under Article 32,  

this Court gives any directions to NHRC, then like  

all other authorities in this country, NHRC is bound  

by such directions. In such situations, NHRC acts  

‘sui-generis’. The statutory bar of limitation under  

Section 36(2) of the 1993 Act will not stand in the  

way (paras 12 and 15, pages 137-138 of the report).

69. Therefore,  NHRC,  a  statutory  body,  in  a  given  

situation,  may  have  to  act  under  the  order  or  

direction given by this Court in exercise of its  

constitutional power of judicial review.

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70. However, in the facts of this case, NHRC has not  

committed  any  illegality  by  taking  into  

consideration the article written by Professor  

Ved Kumari and then making a mere recommendation  

to  the  Governor,  for  considering  the  

petitioner’s plea for commutation.  We are of  

the opinion that in doing so, NHRC acted within  

its jurisdiction.  

B. Whether non-disclosure of reason vitiates the  Order of the Governor under Article 161 of the  Constitution?  

71. In the judgment on Article 32 petition, it was  

noted that the order of the Governor directing  

commutation “does not indicate any reason” and  

this, according to the judgment is contrary to a  

decision  of  this  Court  in  Epuru  Sudhakar  and  another v. Government of A.P. & Ors  .,   reported  in  2006  (8)  SCC  161.  The  impugned  judgment  

quotes para 38 from Epuru (supra).

35

72. After  quoting  that,  the  impugned  judgment  

quashes the order of commutation by the Governor  

and directed reconsideration.

73. On review of the aforesaid reasoning, we find  

that this finding in the judgment is vitiated by  

errors apparent on the face of the record.

74. In  this  case,  the  entire  record  relating  to  

exercise  of  power  by  the  Governor  was  always  

available for perusal of the Court.

75. It is well-settled that while exercising power  

of  commutation  under  Article  161  of  the  

Constitution, the Governor is to act on the aid  

and advice of the Council of Ministers.

76. From a perusal of the materials on the file, it  

appears  that  detailed  consideration  has  been  

made  in  the  Chief  Minister’s  Secretariat  and  

notes in detail have been put up by the Chief  

Minister’s  Secretariat,  wherein  the  entire  

factual aspect of the case has been considered.  

36

The  different  judgments  given  in  the  first  

review petition were part of the note, and on a  

consideration of the detailed note, the Chief  

Minister approved on 22.10.2001 the note put up  

before him by the Secretary, Judicial Department  

for  commutation.  Thereafter,  the  matter  was  

placed  before  the  Governor’s  Secretariat  with  

the entire record. The Hon’ble Governor approved  

the proposal on 12.1.2002. Therefore, more than  

adequate reasons are available on the records of  

the case.

77. It was open to the Bench passing the judgment  

under review to peruse the entire record.

78. However,  on  the  extent  of  judicial  review  in  

respect  of  exercise  of  power  by  the  Governor  

under  Article  161,  or  by  the  President  under  

Article  72,  there  are  authoritative  

pronouncements by this Court and the matter is  

no longer res-integra.

37

79. In  G. Krishta Goud & J. Bhoomaiah v. State of  Andhra Pradesh & Ors. reported in (1976) 1 SCC  157, this Court while construing the extent of  

judicial review in connection with exercise of  

clemency power by the President or the Governor  

respectively under Articles 72 and 161 held that  

even  though  the  power  granted  to  the  highest  

executive authority is not totally immune from  

judicial  review,  but  Court  makes  an  almost  

extreme  presumption  in  favour  of  bonafide  

exercise  of  such  power  (Para  8).  However,  in  

para 9 the Court sounded a note of caution that  

where the exercise of power is just by way of a  

rule of thumb and totally arbitrarily or out of  

personal vendetta, the Court is not helpless.  

(See para 9)

80. This  question  again  came  up  for  detailed  

consideration before the Constitution Bench in  

the case of  Maru Ram v. Union of India & Ors.  reported in (1981) 1 SCC 107. In para 72 at page  

153 of the report, this court was summarizing  

its conclusions and in sub-para 9 it was held  

38

that only in rare cases the Court would examine  

the  exercise  of  power  by  the  appropriate  

authority. Subsequently, in  Kehar Singh & Anr.  v. Union of India & Anr. reported in (1989) 1  SCC 204,  again by a Constitution Bench of this  

Court, the extent of exercise of this power of  

clemency  was  considered.  In  para  13,  Chief  

Justice  Pathak,  speaking  for  the  Constitution  

Bench, held-

“Nor  do  we  dispute  that  the  power  to  pardon  belongs  exclusively  to  the  President  and  the  Governor  under  the  Constitution.  There  is  also  no  question  involved in this case of asking for the  reasons  for  the  President’s  order.  And  none  of  the  cases  cited  for  the  respondents beginning with  Mohinder Singh  Gill (1977 (3) SCC 346) advance the case  of the respondent any further.” (emphasis  added)

81. It  also  appears  from  para  11  of  Kehar  Singh  (supra) that it relies on the formulations of  

principles in  Maru Ram (supra). Paras 7 and 15  of  Kehar  Singh (supra)  would  also  show  that  Maru  Ram (supra)  ratio  was  followed  in  Kehar  Singh (supra).

39

82.  In view  of such  consistent view  of the  two  

Constitution  Benches  of  this  court  clearly  

stating that unless the exercise of power by the  

Governor under Article 161, is ex facie perverse  

or is based on a rule of thumb, the Court should  

not interfere for mere non-disclosure of reason,  

the  finding  to  the  contrary  in  the  judgment  

under review, by relying on a two-judge Bench  

decision in  Epuru (supra) case, is vitiated by  errors apparent on the face of the record. Even  

in para 37 in Epuru (supra), the observation of  Kehar Singh (supra), underlined hereinabove were  noted.

83. In the instant case, a perusal of the record  

shows that upon a detailed consideration of the  

relevant facts, the Governor exercised his power  

of commutation. Such an exercise does not call  

for any interference, in view of the law laid  

down both in  Maru Ram  (supra) and  Kehar Singh  (supra).  

40

84. From the perusal of the file this Court also  

notes that in passing the order, the Governor  

considered all the relevant materials, including  

the  judgment  of  three  learned  Judges  in  the  

first review petition filed by the petitioner,  

as also the recommendation of NHRC.

85.  This Court has already held that NHRC has the  

jurisdiction, in the facts of this case, to make  

its recommendation to the Governor to take into  

account  the  materials  which  NHRC  considered.  

This  court  also  finds  that  the  Governor  

considered, apart from the said recommendation  

of  NHRC,  other  relevant  materials  also  and,  

therefore,  the  order  of  the  Governor  is  not  

vitiated in as much as it is not solely based on  

the recommendations of NHRC.

86. Now  the  only  question  which  remains  to  be  

considered is whether the petitioner is entitled  

to insist on a fresh look at his juvenility and  

a fresh consideration of his rights in view of  

the  changes  in  the  Juvenile  Justice  (Care  &  41

Protection  of  Children)  Act,  2000  by  2006  

amendment.  

87. This point has not been stated in the review  

petition  even  though  this  was  argued  by  the  

learned counsel for the petitioner.

88. Mr. P.S. Patwalia, the amicus appearing in the  

case,  objected  to  this  Court  making  a  

pronouncement on this question which is argued  

for the first time in review even though it is  

not pleaded in the review petition as a ground  

for review.

89. This  court  finds  some  substance  in  the  said  

objection.  We have  already indicated  that in  the  

Article 32 petition notice was served on the review  

petitioner and it was open to him to raise these  

points  in  that  proceeding  as  by  that  time  the  

Juvenile Justice (Care and Protection of Children)  

Act, 2000 as amended by the 2006 amendment Act had  

come into force.

42

90. Even though the ambit of the review petition has  

been widened by this Court in Eswara (supra), it has  to  follow broadly  the principles  of review  under  

Order XLVII Rule 1 of the Code of Civil Procedure.

91. Following the discipline of Order XLVII, Rule 1 or  

the concept of ‘an error apparent on the face of the  

record’, we possibly cannot pronounce in a review  

petition on a question, which was open to be raised  

in the original proceeding, but was not raised. That  

apart, it has not at all been pleaded in the review  

petition.  For  these  reasons,  this  Court  refrains  

itself  from  pronouncing  on  the  rights  of  the  

petitioner  under  Juvenile  Justice  (Care  and  

Protection)  Act,  2000  as  amended  by  the  2006  

Amendment. If he is so advised, it is open to the  

petitioner to agitate on his rights under the said  

Act before the appropriate Forum and in appropriate  

proceedings.

92. If such a proceeding is initiated by the petitioner,  

the same will be dealt with without being impeded by  

any observation made or finding reached in any of  

the judgments arising out of the concerned criminal  

43

case against the petitioner, by any Court, including  

this Court.

93. For the reasons discussed above and considering  

the aforesaid legal issues, this Court concludes  

as follows:

(i) The  judgment  of  this  Court  dated  

8.5.2009  on  Article  32  petition  and  

which is under Review is set aside.

(ii) The  order  of  the  Governor  dated  

28.1.2002 passed under Article 161 of  

the Constitution is restored and the  

order of commutation of death sentence  

awarded  to  the  petitioner  to  one  of  

life imprisonment stands.

(iii) This Court holds that in the facts of  

this case, NHRC had the jurisdiction  

to make the relevant recommendation.

94. The  review  petition  is  allowed  to  the  extent  

indicated hereinabove.

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95. Parties are left to bear their own costs.

.....................J. (AFTAB ALAM)

.....................J. (ASOK KUMAR GANGULY)

New Delhi   November 19, 2010

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