S.A.Miyajan v. Union of India & Ors.

writ petition would disclose that the writ petitioner wants this Court to declare that Article 72(1)(c) as ultra vires of the Constitution. 4

4. Counter affidavit has been filed on behalf of the respondents wherein it has been submitted among other things that the powers of the President under Article 72 of the Constitution, are discretionary and it cannot be taken away by any statutory provision and it cannot be altered, modified or interfered with, in any manner whatsoever by any statutory provision or authority and there is no limitation for the exercise of the said power and consequently, this Court has no jurisdiction to quash or review the powers vested with the President under Article 72 of the Constitution. It is further stated in the counter affidavit that consideration of mercy petition involves constitutional process and therefore, it is a time consuming one and hence, it cannot be termed as violative of fundamental rights. Counter affidavit also refers to the report of the Law Commission of India of the year 1967 and it is further stated that no fixed period of delay could be held to make the sentence of death unexecutable and hence no time limit can be prescribed for the disposal of mercy petitions. Reference was also made to Maru Ram's case [(1981) 1 SCC 107] and it is further stated that presidential power acts as a safety value in exceptional cases where the legal system fails to deliver a morally acceptable result and the said power intends to secure public welfare and the 5 pardoning power has become virtually the only way that a sentence, once final, can be reconsidered and, in appropriate cases, reduced. In para 4.7 of the counter affidavit, statistics with regard to mercy petitions has been given wherein it has been stated among other things that till

31.12.2011 27 mercy petitions were submitted/resubmitted to the President's Secretariat and the President of India has decided 1 mercy petition in November 2009, 4 mercy petitions in 2010 and 8 mercy petitions till 31.12.2011 and thus, a total of 13 mercy petitions have been decided by the President since November 2009. As regard pendency, it is stated that as on

31.12.2011, 20 mercy petitions are pending under Article 72 of the Constitution; out of which 16 are pending with President's Secretariat and 4 are pending with Ministry of Home Affairs including the 3 mercy petitions which were received in 2011. Therefore, the second respondent prays for dismissal of this writ petition.

5. The party-in-person, apart from making submissions based on the averments made in the writ petition, has submitted that while exercising the power of pardoning, the interest and welfare of the society, especially the public at large, has not at all been taken into consideration, no guidelines have been enumerated and in what 6 circumstances, the said power can be exercised. The party-in-person further submitted that under the guise of Presidential powers of pardon, murderers are allowed to escape and the case of victims become casualty and the final decisions arrived by the Courts, which were based upon appreciation of oral and documentary evidence and other materials, is being set at nought under the guise of exercising of the said power. Lastly, it is submitted by the party-in-person that there is an unexplained and unjustifiable delay in considering the mercy petitions which enable the murderers to challenge the same before the Court of law and if this Court ultimately holds that Article 72 shall remain, appropriate direction may be issued for fixing up the time limit for considering and disposal of mercy petitions.

6. Per contra, Mr.P.Wilson, learned Additional Solicitor General- II, with regard to pardoning power, invited the attention of this Court to Section 295(1) of the Government of India Act, 1935 wherein power was conferred on the Governor General for suspension, remission or commutation of sentence for all offences committed within the province and the Governor General and Provincial Governors have also similar powers under Section 402-A of the old Criminal Procedure Code. The learned Additional Solicitor General has also invited the 7 attention of this Court to the Constituent Assembly Debates and would submit that Article 72 was numbered as Article 59 in the Draft Constitution and an amendment was proposed and moved by Mr.Tajamul Husain as Amendment No.1286 wherein he has contended that the President alone should have the power of suspension, remission or commutation of sentence and the said power shall not vest with the Governor.

7. Dr.B.R.Ambedkar, in response to the said Amendment, has explained the intention behind the Draft Article 59 and stated among other things that the Drafting Committee has not seen any very strong arguments for taking away the power from the Governor and all the offences committed in the particular locality and the concerned Home Minister would be advising the Governor on a mercy petition of an offender who has been sentenced to death and no harm would be done if the powers, the Governor now enjoys, is left with him. Dr.B.R.Ambedkar further answered that a safeguard is provided and in the event of rejection of mercy petition by the Governor, it is always open, under the provisions of this Article, for the offender to approach the President with another mercy petitioner and try his luck and therefore, there is no great violation of any fundamental principle 8 involved or any inconvenience that is likely to arise if the provisions in the draft Article are retained as they are. Ultimately, the amendment moved by Mr.Tajamul Husain was rejected and Article 59 in the Draft Constitution became Article 72 in the Constitution of India. The learned Additional Solicitor General would further submit that interpretation of the said Article came up for consideration before the Hon'ble Supreme Court of India in the following decisions:

1.Nanavati v. State of Bombay [AIR 1961 SC 112]

2.Maru Ram v. Union of India [AIR 1980 SC 2147]

3.Kehar Singh & Another v. Union of India & Another [AIR 1989 SC 653 = 1988 SCR supl. (3) 1102]

4.State of Punjab v. Joginder Singh [(1990) 2 SCC 661]

5.Swaran Singh v. State of U.P. [(1998) 4 SCC 75]

6.Satpal & Another v. State of Haryana & others [(2000) 5 SCC 170]

7.Delhi Administration v. Manoharlal [(2002) 7 SCC 222]

8.Kamalanantha v. State of Tamil Nadu [(2005) 5 SCC 194]