apoorv gupta 212109 section b

8/11/2019 Apoorv Gupta 212109 Section b

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APOORV GUPTA 212109 SECTION B

I. STATEMENT OF ISSUES

A. Whether the legality of an order of commutation can be challenged in a court of law.

B.

Whether the order of commutation can be successfully challenged in the present case.

II. STATEMENT OF FACTS

Four law students – Takla Shaitan, Mogambo, Crook Bond and Ramdev have been

accused of planning and executing a bomb explosion on 25 th January, 2008 which

killed 300 hundred people.

The special sessions court awarded death penalty to Takla shaitan and life

imprisonment to the other three. The sentence was upheld by the high court.

Subsequently, the Supreme Court also affirmed the decision by dismissing the appeal.

During the pendency of appeal, Takla Shaitan became a legal scholar of international

repute and after the decision of the Supreme Court he filed a petition for the

commutation of his sentence with the President on 15 th March, 2010 expressing his

remorse for the bomb blast and emphasising on the positive manner in which he has

reinvented himself after his arrest.

Submitting to the pressure from various spheres of domestic and international domain,

the President of India, on the recommendation of the council of ministers commuted

the death penalty imposed on Takla Shaitan.

On filing an application under RTI, following reasons were stated for the

commutation of the death penalty:

1.

Mr. Takla Shaitan’s expression of remorse and guilt.

2. His exemplary conduct and his remarkable intellectual achievements in the

aftermath of his arrest.3. Relentless advocacy campaigns by human rights organisations; and

4. Prime Minister of Japan, Minako Ikeda’s statement that a nuclear deal between the

two countries, vital for India’s energy secur ity, would fail to find approval of the

Japanese Parliament if India persists with death penalty.

III. SHORT CONCLUSION



The power of commutation of the President is not absolute. It is subject to judicial review but

only on very few limited grounds. In the present case there is a reasonable chance of

successfully challenging the order of commutation based on such grounds.

IV.

DETAILED DISCUSSION

A. The order of commutation by the president can be challenged in a court of law.

The power of the President of India under article 72 of the constitution is of the widest

amplitude but it is not outside the purview of judicial review. 1 The Supreme Court in Kehar

Singh and Maru Ram2 has stated that the power under article 72 is subject to judicial review

on certain specified grounds. It also accepted a writ petition in Kuljit Singh v Lt. Governor of

Delhi3

challenging the arbitrariness of the power of the president to commute the offender. In

the words of the Supreme Court, “It appears to us clear that the question as to the area of

president’s power under article 72 falls squarely within the judicial domain and can be

examined by the court by way of judicial review.”4

Therefore, it is now a well settled position in law that the order of commutation by the

President can be challenged in a court of law.

B. The order of commutation can be successfully challenged in the present case.

The order of commutation can be challenged on the grounds of it being arbitrary,

discriminatory or mala fide.5 Also the Supreme Court in Epuru Sudhakar v. Govt of A.P 6 has

laid down that review under Art.72 and Art. 161 is available on the following grounds: “

(a) That the order has been passed without application of mind

(b) That the order is mala fide

(c) That the order has been passed on extraneous or wholly irrelevant consideration;

(d)

That the relevant material has been kept out of consideration;

(e)

That the order suffers arbitrariness.”7

1 Kehar Singh v. Union of India, (1989) 1 SCC 204; Bikas Chatterjee v. Union of India, (2004) 7 SCC 634.

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

31982 AIR 774, 1982 SCR (3) 58

4

Kehar (n1).5 Kehar (n1); Maru (n2).

6 (2006) 8 SCC 161: AIR 2006 SC 3385, 3395.



Moreover considerations of religion, caste or political loyalty are irrelevant and prohibited.

While exercising the power, it has to be kept in mind the effect of the decision on the family

of the victim and the society and the precedent it sets for the future.8 Also the rule of law is

the basis for all such decisions.9 The rule cannot be comprised on the grounds of political

expediency.10 To do so would amount to going against the fundamental principles of rule of

law and would set a dangerous precedent.11 The limits to this power of wide amplitude have

to be found within the constitution itself.12 If the exercise of article 72 disregards the finer

principles of constitutionalism, the order cannot get the approval of law.13

In the present case, the order of commutation has been passed without much consideration to

the above mentioned principles of law. One of the reasons stated for the commutation is the

expression of remorse and guilt on the part of Mr. Shaitan. The order has been passed without

proper application of mind and on extraneous considerations. It has not been taken into

account that such expression of remorse and guilt does not dilute the heinous nature of crime

committed in the present case. It is case of planned killing of 300 innocent citizens. And

expression of remorse cannot be a sufficient ground for commuting the death sentence.

The decision also fails to take into account the impact of the decision on the family of the

victims and the society as a whole. It takes away the justice done by the Supreme Court to the

victims of the tragic bomb explosion. It takes away the relief which was awarded to the

families of the victims when the culprits were brought to the book. A crime is committed

against the society and if a person is let off after killing 300 people on some frivolous

grounds, it is going to set a bad example in society. If today such a person is let off, it is

going to pave way for many such petitions in future asking for commutation based on the

present case following the reasoning that if a killer of 300 can be excused, why not a person

with a much lesser degree of crime.

It also sets a dangerous precedent in the way that it disregards the finer canons of

constitutionalism embedded in article 14 of our constitution. Article 14 talks about equality

before law and ensures protection against arbitrary action. In the present case, the decision of

the President suffers from arbitrariness. When in past, petition of criminals with much lesser

7 Epuru (n6).

8 Epuru (n6).

9 Durga Das Basu, Shorter Constitution of India (14

th Edition, Reprint 2011) 682.

10 Basu (n9).

11

Basu (n9).12 Basu (n9).

13 Swaran Singh v State of U.P., (1998) 4 SCC 75.



degree of guilt have been rejected, this order of the President is contrary to article 14. The

decision has been based on purely irrelevant and extraneous grounds. The decision cannot be

taken on grounds of a petitioner’s academic proficiency. It does not take away the guilt of the

criminal and does not absolve him of his crimes. In past where applications have been

rejected on much more serious grounds,14 the grant of commutation of death penalty in the

present case suffers from a serious case of arbitrariness.

Moreover the decision has been influenced by political considerations. Mounting

international pressure especially from Japan influenced the government into taking this

decision setting a dangerous example in a civilized society where one can be let off even

though being guilty for the death of 300 people on political grounds. The decision also goes

against the principle of sovereignty embedded in the constitution as a foreign nation is able to

arm-twist India’s domestic decisions.

V. CONCLUSION

The order of commutation by the President of India comes under the purview of judicial

review in a limited number of cases. The present case is an example which falls under this

category. In the present case, the decision has given prevalence to politics over the

institutions of a civilized society. It has failed to take into account the very fundamental basisof the criminal justice system of the nation by ignoring the crime committed against the

society for signing a nuclear deal. The decision runs contrary to basic principles embedded in

our constitution as the decision has been purely influenced by extraneous and irrelevant

considerations. It fails to take into account the impact it will have on society. The state, in the

present case, essentially hasn’t set the right example in the eyes of the people and injustice

has been done to the families of the victims.

It is a very strong case capable of successfully challenging the order of commutation by the

President. The nuclear deal with Japan is a completely different issue which shouldn’t

influence the decision of the State in the present matter. Also taking into consideration the

rejection of commutation petitions in the past, award of relief in the present case runs

contrary to the principles of natural justice and equality expressed in our constitution.

14

Dhannjay Chatterjee had already spent 14 years in jail before being hanged. The Jail authorities alsoappreciated his conduct during his years in jail. He had raped and killed a fourteen year old girl in her apartmentin Bowanipore, Kolkata. His mercy petition was rejected by the President.

apoorv gupta 212109 section b

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