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9.5 In April 2003, the President’s Secretariat forwarded to the Ministry of Home Affairs, the petitions received from the following personalities for showing clemency to the petitioner:

(1) Mr. David Kilgour, Secretary of State (Asia Pacific);

(2) Department of Foreign Affairs and International Trade, Canada;

(3) Congress of the United States, Washington;

(4) Mr. Tony Baldry, MP, House of Commons, London;

(5) Shri Ram Jethmalani, M.P. (Rajya Sabha);

(6) Shri Justice A.S. Bains, former Judge and Convenor, Devinderpal Singh Bhullar Defence Committee; and (7) Shri Simranjit Singh Mann, M.P. (Lok Sabha).

11. Shri Ram Jethmalani, learned senior counsel, who assisted the Court as an Amicus extensively referred to the judgments in Vatheeswaran’s case, K.P. Mohd.’s case and Javed Ahmed’s case and argued that the rejection of the petition filed by the petitioner should be quashed because there was unexplained delay of 8 years. Learned senior counsel forcefully argued that the judgment in Triveniben v. State of Gujarat (1989) 1 SCC 678 does not lay down correct law because the Bench which decided the matter did not notice the judgment of another Constitution Bench in Kehar Singh v. Union of India (1989) 1 SCC 204. Learned senior counsel pointed out that while deciding the petition filed under Article 72 of the Constitution, the President can independently consider the issue of guilt of the accused and accept the mercy petition without disturbing the finding recorded by the Court. Shri Jethmalani submitted that attention of the Bench which decided Triveniben’s case does not appear to have been drawn to the views expressed in other judgments that in cases where the accused is convicted for murder, life imprisonment is the normal punishment and death penalty can be inflicted only in the rarest of rare cases, which involve extraordinary brutality in the commission of the crime or other aspects of heinousness. Learned senior counsel then argued that delay in deciding a mercy petition filed under Article 72 or Article 161 of the Constitution due to executive indifference or callousness or other extraneous reasons should always be treated as sufficient for commutation of death sentence into life imprisonment.

“We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic ... do hereby adopt, enact and give to ourselves this Constitution.” To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State. In England, the power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, however, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme. In an opinion, remarkable for its erudition and clarity, Mr Justice Holmes, speaking for the Court in W.I. Biddle v. Vuco Perovich (71 L Ed 1161) enunciated this view, and it has since been affirmed in other decisions. The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned counsel, Shri Ram Jethmalani and Shri Shanti Bhushan, appearing for the petitioners that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) of the Constitution, must act in accordance with such advice.” (emphasis supplied) In that case, the Constitution Bench also considered whether the President can, in exercise of the power vested in him under Article 72 of the Constitution, scrutinize the evidence on record and come to a different conclusion than the one arrived at by the Court and held:

27. In T.V. Vatheeswaran’s case, on which learned senior counsel for the petitioner and the learned Amicus Shri Ram Jethmalani placed heavy reliance, the two Judge Bench considered whether the appellant, who was convicted for an offence of murder and sentenced to death in January, 1975 and was kept in solitary confinement for about 8 years was entitled to commutation of death sentence. The Court prefaced consideration of the appellant’s plea by making the following observations: