Home case law Epuru Sudhakar & Ors. vs. Government of Andhra Pradesh & Ors. (2006)

Epuru Sudhakar & Ors. vs. Government of Andhra Pradesh & Ors. (2006)

September 25, 2024

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This article is written by Charu Kohli. The case of Epuru Sudhakar vs. Government of Andhra Pradesh (2006) has been dealt with in great detail in the article by analysing the facts of the case at hand, the legal issues and the arguments advanced along with the judgement of this case. Further, the article also deals with the pardoning powers of the executive and when the pardon can be granted to the convict. It also dwells on the understanding of whether judicial review of the power can be done or not.

Table of Contents

Introduction

As per the Black’s law dictionary, the word “pardon” has been defined as an action of grace which emancipates from the power of someone who tasked with the implementation of laws and such an act exempts the individual from the punishment that is inflicted on him/her by law for a crime committed. In simple terms, one can say that the term ‘pardon’ means the act of forgiving someone for a thing done or said by them. Therefore, in terms of law, we can say that the act of pardoning someone is an official act by which the executive head of the State, which can be the President of the nation or the Governor of the State, as the case may be, has the authority to forgive the convict of the offence that was committed by them.

Now, the question in your mind would surely be, why would the President or the Governor forgive a convict after the whole trial process has been done; is it not against the principle of natural justice? In order to find answers to crucial questions and to understand the extent of pardoning power, read the case analysis below.

Details of the case

Case name: Epuru Sudhakar & Ors. vs. Government of Andhra Pradesh & Ors.
Case No.: Writ Petition (Criminal) 284-285 of 2005
Equivalent citations: 2006 (3) ACR 3223 (SC); 2006 (47) AIC 25, AIR 2006 SC 3385; 2007 (57) ACC 869; 2006 (3) BLJ 185; I (2007) CCR 246 (SC); 2006 INSC 695; JT 2006 (9) SC 72; (2006) 4 MLJ 1555 (SC); 2006 (4) PLJR 144; 2006 (4) RCR (Criminal) 616; 2006 (10) SCALE 98; (2006) 8 SCC 161; [2006] Supp 7 SCR 81
Acts involved: the Constitution of India, the Indian Penal Code, 1860, the Code of Criminal Procedure, 1974 and the General Clauses Act, 1897
Provisions involved: Articles 21, 72 and 161 of the Constitution of India, Sections 302, 304, 109 of the Indian Penal Code, 1860 and Sections 14 and 21 of the General Clauses Act, 1897.
Principles involved: Grant of pardon, judicial review and court martial
Court: Hon’ble Supreme Court of India
Bench: Justice Arijit Pasayat and Justice S.H. Kapadia
Petitioners: Epuru Sudhakar & Ors.
Respondents: Government of Andhra Pradesh & Ors.
Amicus Curiae: Mr. Soli J. Sorabjee and Mr. P.H. Parekh
Judgement: 11th October, 2006

Importance of the case

The landmark judgement in the case of Epuru Sudhakar & Ors. vs. Government of Andhra Pradesh & Ors. (2006) has been delivered by Justice Arijit Pasayat. Herein Justice Pasayat has explored the ambit of power bestowed to the executive branch consisting of the President and the Governor. More specifically here the power to pardon the punishment sentence of a convict by the Constitution of India was discussed in the judgement. Further, Justice S.H. Kapadia authored a brief analysis of the judgement whereby he talked about the intricacies of judicial review. In his opinion, the power of judicial review acts as a key aspect of the power and role of the judiciary.

The clemency powers vested with the Governor and the President under Article 161 and Article 72 respectively were held to fall under the purview of review by the judiciary as per this judgement. Further in this case the Hon’ble Supreme Court of India held that the powers of the executive authorities cannot be exercised arbitrarily by them and that there should not be any kind of mala fide intentions of the authorities. They also stated that the basis of consideration while granting such a pardon/remission should not be extraneous in nature.

It is important to note that the role of the judicial authority and its responsibilities is not only to maintain the power of balance but it is also to strengthen the basic structure. The role of the Judiciary therefore is to adhere to the fundamental framework and also strengthen its tenants by following the principles of natural justice and upholding the rule of law. This case is therefore seen as a reminder that showcases the significance of the principles of natural justice and the need of today to have an open and accountable government.

Therefore, this judgement is pertinent to be studied as it helps not only clarify the ambit of pardoning authority but also ensures that the mitigating circumstances while granting a pardon can be re-examined. This re-examination, therefore, helps in ensuring that no innocent person is punished and that everyone gets an opportunity for being heard in a fair and just manner. In the judicial system of India, the principle of Blackstone’s ratio has been followed since time immemorial. The ratio states that it is ‘Better that ten guilty persons escape than that one innocent suffer.’ Furthermore, this serves as an instrument that examines the humanitarian nature of punishment and encourages the reintegration of the convicts back into society.

Facts of the case

In the case at hand, two people named Sh. Epuru Chinna Ramasubhai and Ambi Reddy were allegedly murdered by respondent no. 2 on 19 August 1995. Therefore, the son of the late Sh. Epuru Chinna Ramasubha filed a case as the petitioner no.1. The petitioner no.1 is named Sh. Epuru Sudhakar. Further, petitioner no. 2 in this case is the son of the late Sh. Tirupati Reddy, who alleges that his father was murdered by Gouru Venkata Reddy (respondent no. 2) while the said respondent no.2 was on bail.

The respondent was convicted earlier under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) for the offence of murder. After which in the Criminal Appeal No. 519-521 of 2003, respondent no. 2 faced the trial of the two murders on 19.10.1995. After the trial, the respondent in the year 2003 was given a sentence by the appellate criminal court under Section 304(1) read with Section 109.

Therefore the punishment of murder was altered to the punishment for culpable homicide not amounting to murder and the punishment of abetment if the act abetted is committed in consequence of another act and where there is no express provision in place to give punishment respectively. The judgement was pronounced on 19 November 2003 which imposed the custodial sentence of 10 years rigorous imprisonment on respondent no. 2.

However, while respondent no. 2 was in jail on 28 May 2003, respondent no. 3 (wife of respondent no. 2) submitted for parole for her husband. The same was granted to respondent no. 2 for 15 days. However, after the report of the Superintendent of Police, Kurnool was presented before the court stating a likelihood of breach of peace and law and order in the Nandikotkor Assembly Constituency, the parole was cancelled.

Thereafter, the wife of respondent no. 2 contested elections in the Andhra Pradesh Legislative Assembly and she won the same. On 12 May 2004, she was appointed as MLA and, on 14 May 2004, she again made a representation of the grant of parole of her husband. This time the parole was not only granted on 19 May 2004 that is within a week but it was also extended a few times.

The fourth extension of the 15-day parole was granted to respondent no. 2 on 18 July 2004. Further, respondent no. 3 went ahead on 10 October 2004 and sought pardon for her husband under the ambit of Article 161 of the Constitution of India by the Governor of the State. The representation was made by the other respondents, whereby they requested the pardon for the Congress party stating that the case on the respondent was a false case. They pleaded that the case which was filed was with malicious intent set up in order to trap the Congress worker. They also contended that this was done due to political rivalry between the parties.

So, within a matter of eight days, that is, on 18th October 2004, while the pardon petition was pending, the parole of a one-month long period was granted to respondent no. 2. Then, on the 11th of August, 2005, the then Governor of Andhra Pradesh also granted remission of the unexpired sentence to respondent no. 2 by using his powers under the ambit of Article 161.

The Director General and Inspector General of Police (Correction Services) Andhra Pradesh were also directed by the Governor to take action in order to release respondent no. 2. Moreover, on 12 August 2005, the Superintendent of Central Prison, Cherlapally, R.R. District directed the release of respondent no. 2 from the prison.

After witnessing all this, the sons of the deceased Telugu Desham party workers were aggrieved. This act of exercising the pardoning power by the then Governor, Mr. Sushil Kumar Shinde, since he was also a Minister under the United Provincial Alliance Government (UPA) was seen as a political move by the petitioners.

Therefore, the petitioners knocked on the doors of the Andhra Pradesh High Court to review the remission granted by the Governor of Andhra Pradesh. The Hon’ble High Court in this case had quashed the order of the pardoning of the Governor on the ground that it was exercised on the basis of political affairs and links of the party members. Therefore, this act of granting pardon by the Governor was deemed to have not been committed in accordance with the basic principles of natural justice.

So, a writ petition was filed under the ambit of Article 32 of the Constitution of India. Under this writ, the grant of remission to the respondent for the unexpired period from the 10 years of rigorous imprisonment was challenged by the petitioners. This remission was granted for about 7 years of imprisonment and punishment of Gowru Venkata Reddy (respondent no. 2) by the Governor of Andhra Pradesh. The Supreme Court of India took up a deep analysis of the issue of whether a party member holding the pardoning power as the Governor can pardon the members of the party. Also, the question of whether or not the pardoning power is subjected to judicial review was answered in this case.

Issues raised

The issues presented before the Supreme Court of India in this case were as follows-

Can the power of judicial review be used to determine the validity of the pardon/remission granted by the Governor of the State under the ambit of Article 161?
Whether the pardon can be granted without reviewing the material facts in a case? What constitutes material facts while granting pardon/remission to a convict?

Principles and concepts involved in the case

Pardoning power

The power of granting a pardon is in the hands of the executive authority of India and it is the last resort that a convicted person can claim in cases which are criminal in nature. The executive authority of India comprises the President of India that is Bharat and the Governor of each State as the case may be. It is important to note that during the constituent assembly deliberations of whether this power should come into existence or not in the years 1948 and 1949 the justifications for this constitutional clause were never explored nor were they contested. This idea of giving the power to grant a pardon to the punishment has been an integral part of the global world since time immemorial and earlier the powerful kings only had the authority. This was because the king of the monarch had the ultimate authority to punish the person therefore he was the only one who had the authority to absolve a punishment as well according to his own discretion. This principle however is still used even today in order to make sure that the golden principles of natural justice are not overshadowed by the power bearers. It ensures that there is no kind of hindrance in the power structure and that everyone is given an equal opportunity for protection

In cases when a convict is facing a penalty like a life sentence or a death sentence then he or she has the right to present a mercy petition before the executive authority. This mercy petition to the executive branch of the government brings the pardoning power into motion as it is only after this petition that the authorities supervising the person are ordered to present their reports. After this authority is reported as well as the case is analysed in depth by the Governor of the State or the President of India as the case may be. It is only after being fully satisfied on the ground and justifications provided by the authority and the facts of the case that the executive head gives his or her decision. This decision can be one granting the pardon or one nullifying it.

All across the globe countries like the United States of America, the United Kingdom, Canada as well as India have the provision of granting parting to the convicts. The term mercy petition is the official terminology which is used in the United States of America when an appeal for pardon is made before the President of the United States or the Governor of the state. In India, it is known as the power of granting a pardon. However, here also the power can only be exercised by the President of India and the Governor of the State as per the Constitution of India.

Procedure and grounds of the mercy-granting power

In India, there is no statutory procedure to hear the application for the last resort of appeal to be presented by the convict to the authorities.
This power however can only be exercised when all the other reliefs of the Hon’ble quotes of India are exhausted by the convict and he or she still deems that the justice has not been delivered to them. In such cases, the convict himself or the relatives of the convict can submit to the President or the Governor a petition so as to receive a pardon from the charges which are levied on them.
It is important to note that this is not a right of the prisoner. But it is granted by the executive only when the executive believes that even after the due process of law the justice which should have been delivered has not been done so properly. It is when the laws are applied way too harshly and strictly on the convict.
Also, the petition of Mercy is not viewed from the eyes of health, fitness, and family financial conditions; rather it is done in order to prevent any kind of injustice from penetrating the system. Further, it is done in order to ensure that there is no form of discrimination present while delivering a judgement.

Object of the pardoning power

The basic structure of the law of the land itself states that everyone has the right to live and get justice delivered to them. Therefore the President and the Governor are vested with the power of granting pardons as it ensures the following-

This power ensures that the fundamental rights of an individual and not hindered in any form,
It helps ensure that everyone has a fair chance to attain justice in every and any circumstance,
It ensures that there is no kind of arbitrariness present in the judicial system itself,
It ensures that the power holders are using the powers in the correct manner so as to uphold the principles of natural justice, and
It is a certain way to ensure that everyone has a right to be heard and be given an opportunity to present their case without any kind of bias.

It is the last resort with any convict to appeal for justice in cases with the application of the law has been harsh or where the justice has not been delivered in the truest of its sense. The power of granting a pardon is given under the constitutional system so as to guard against the injustice which can be caused by the strict application of rules. It is present to act as a watchdog which keeps a check on the power of the decision-making authorities. The objective of introducing the pardon granting power is to ensure that if a sentence is delivered then it should not go against the principles of natural justice and that the convicted person has been able to present his case. It has been stated that the pardon granting power is a form of a reformative theory of punishment and that it ensures that the humanitarian rights of the prisoners are not infringed.

This provision of preventing injustice is also a way by which the executive branch of government gets the authority to correct any kind of errors of the judiciary. In cases when the decision delivered by the judicial authority has some sort of potential errors then the constitution of India comes into power to create a balanced equation in the society and to undo those errors the executive is in charge. The various kinds of judicial errors can be as follows-

Miscarriages of justice,
Dubious convictions,
Blatant errors, or
Unduly harsh enforcement of criminal law.

Moreover, this power also has an additional benefit in that it motivates the inmates to be in proper discipline and perform well during the term in the presence as all of this is calculated in the reports by the authorities. The decision of the Governor or the President is based on the report of the authorities so they are of great importance.

Article 72 of the Constitution of India

Article 72 is enshrined within the Constitution of India. This Article deals with the power of the President of India to grant pardons and also deals with his power to suspend, remit, or commute sentences of convicts in order to ensure the delivery of justice.

The Article states that the President of India has a wide range of powers. The powers are discussed as mentioned below –

To grant pardon- The act of granting a pardon means forgiving or excusing someone for something said or done by them. Under this provision of law, the term pardon means the act of the President by which he or she releases the Convict of all the charges which are imposed on him or her.
To grant reprieve- Cancelling or postponing a thing or an event is known as reprieve. However, in the legal sense, this terminology means that the President has the power to postpone the punishment of the person who is convicted under a criminal charge.
To grant respite- The meaning of the term respite means to put a temporary kind of stay on the punishment of the convict. Therefore under the ambit of this Article, the President has the power to temporarily put a stay on the sentence of the person.
To grant remission- The act of granting remission means that the resident is releasing the person from his or her prison sentence. In simple words, it means that the person is no longer required to complete the term of his or her sentence because the executive authority deems it satisfactory as well as reasonable to release the portion from the bounds of the jail. Granting of remission can be based on the fact that the person had behaved exceptionally well during his term in jail or that the authorities no longer deem it necessary for the person to be punished for the act committed by him.
To commute a sentence- The term commute means the act of changing a harsh punishment to a less harsher punishment. It is basically the act of substituting the punishment of a person and this can be done based on the facts of the case present or the reports of the authority. In substituting the punishment of a person from harsh to easy one can also be based on keeping the attitude and needs into consideration.

Therefore under the act of granting a pardon, the President can give mercy or forgiveness to the convict. the Constitution of India and the Ambit of Articles 72 clearly deal with this power which is specially given to the executive head of the nation and it states that the President’s authority to grant a pardon is not only restricted to death sentences but is also present in the cases of Union Law violations, court-martials or military tribunals.

Article 161 of the Constitution of India

The power of pardon empowers the Governor of the State under the ambit of Article 161 of the Constitution of India. The power of the Governor to grant the pardon can be explained as the following –

The executive head of a State is the Governor and therefore he is empowered with the pardoning power and the ambit of the section. Therefore they have the authority to not only grant pardons but also to reprieves, respites, or remissions of punishment to the convict.
A person convicted in a criminal case can be granted a suspension, remission or even a commutation over his or her sentence by the Governor of the jurisdiction. This is not a right but a power to be exercised judiciously by the Governor of the State only in the judicial boundary and territory of the state.
Similar to the powers of a President the Governor is also powerful and can forgive the sentence of a convict of a criminal case. However, he/she cannot forgive the penalty by court martial because this authority is only with the President of India.

Prerogative of mercy

In the times when the monarch had the power to grant mercy, it was deemed to be a special authority which could influence the rights of the individual who was subjected to the jurisdiction of the king. In today’s world, however, this royal prerogative is no longer in the hands of the king but has been delivered to the executive officer of the state. Now mercy is granted by the executive authority and they are the ones who ensure that in cases when a convict comes to seek a redressal in cases of miscarriage of justice then it is their duty to recheck the same and to ensure justice is delivered to all.
It is important to note that this power comes with the duty and that is to provide justification while giving out such a pardon. The president or the Governor while granting or denying the pardon has to provide a reasonable justification of the same.
The powers of the court cannot be undone simply by invoking the word ‘prerogative’. Rather, even the court while giving its decision during the judicial review has to give out reasons for the same.

Judicial review

Judicial review is a process of the judiciary where the judge considers whether the decision or the action taken by the public authority is legal according to procedures of law or not. This is done in order to maintain the check and balance between the power holders in the nation.
Judicial review does not mean that the judiciary looks into the merits or the demerits of the decision given by the public authority. Rather it focuses on how the authorities have reached that conclusion or have done that act. This is done in order to ensure that the act is in accordance with the basic structure of law and that the procedure used follows the natural principles of justice. In simple terms, it can be said that the process of judicial review questions how the decision has been reached rather than focusing on what the decision is.
The American Constitution is the one from which the Constitution of India has the power of judicial review. It states that judicial review helps in maintaining a balance in the power dynamics of the country. This power balance is between the three major pillars of the country namely the legislature, executive and judiciary who together create the working system of the government.
Judicial review has two major functions:-
- The judicial review helps in legitimising the actions taken by the government and the orders passed by them whenever these are consistent with the law of the land.
- Further, it helps to ensure that the government does not interfere in a way which can be harmful and that the basic structure of the Constitution is protected from interference.
The power of the judiciary is also an essential framework of the Constitution as the judiciary has the duty of not only keeping a check and balance but also interpreting and observing the processes used so as to ensure that no innocent is deemed guilty in any case.
Judicial reviews can be classified into three types:
- Legislative actions- This procedure of judicial review consists of not only examining the legislation passed by the legislature to see whether they are consistent with the Indian Constitution but also keeping a check on whether it follows the basic framework or not.
- Administrative actions- The administrative actions are the ones done by the executive branch of the government and it includes not only the decision for the orders of the executive but also the policies implemented by them. Therefore in such cases, it becomes the duty of the judiciary to review these policies, orders and decisions so as to ensure that they are legal and fundamentally related to the constitution of the land.
- Constitutional amendments- The judiciary reviews constitutional amendments passed by the legislature to see whether they violate the fundamental structure or any other provisions of the Constitution or not.
This power of the judiciary is one of the most important factors in the Indian diaspora as it ensures constitutional supremacy and prevents the abuse of power by the authorities. It ensures that the rights of people are prevalent and that the country can run smoothly because of a balance of power. It is an independent and autonomous body which ensures that the tyranny of the executive cannot take place.
Judicial review is the armour as well as the shield which protects the citizens from the arbitrary rule of the legislation or the executive authority by preventing any kind of violation of the Constitution of the land.
Therefore, when the President or the Governor grants pardon or remission to a convict on unsatisfactory grounds, then it is the duty of the judiciary to check and ensure that the decision of the executive head is not in any way biased.

Sections 14 and 21 of the General Clauses Act (1897)

Section 14: This section states that after the commencement of an act by the central act a regulation if the power is given under such an act regulation then it can be used as and when needed.
Section 21: If under the ambit of the central act or regulation which is passed the power to issue notifications orders rules by laws is present or if the provision allows for the addition amendment, variation or rescind of any provision then the same can be done.
It was only in the case of Sampat Prakash vs. State of Jammu and Kashmir (1969) that the court talked about the ambit and the scope of the Sections. The Hon’ble Court has stated that since Section 21 gives a wide array of powers due to its stating that any kind of amendment, etc is allowed therefore there is a need to bring it in accordance with the constitution of India. The court here had felt that the power of the executive is wide-ranging and needed to be subjected to certain guidelines.
In the case that hand the ambit of Section 432(3) of the CrPC was explored in this regard. Herein the judiciary felt that the central legislation of CrPC when read with the provisions of the Constitution clearly states that if the conditions of the sentence of suspension or remission when not fulfilled then the appropriate government has the power to cancel the same.
To understand this ambit in more detail the USA’s law was also brought into the picture and even stated that a pardon can be void if the person having the authority to grant the pardon was misinformed and it can be both intentional falsehood or suppression of truth in any manner.
The Hon’ble bench included that under Sections 14 and 21 of the General Clauses Act, 1897 also the pardon can be rejected. This can be done in cases when the pardon was procured by false and fraudulent representations or intentional suppression of the truth, even if the person pardoned had no part in the fraud in any sense.

Code of Criminal Procedure (1973)

Section 432 of CrPC

Section 432 of the CrPC provides for the power to suspend or remit sentences.

The term appropriate government under the Section means the central government or the State government in regard to the situation. This means the jurisdiction of the offence committed by the convict for which he had been sentenced is to be seen while determining the appropriate government.
The power of suspending or remitting a sentence is granted only to the appropriate government under this provision. This power can be exercised by the appropriate government with or without any conditions attached to it.
The appropriate government also has the power to cancel the suspension or remission of the punishment of the convict in cases when the convict does not follow the conditions on which he was granted the suspension or remission. It is pertinent to note that the suspension can be at any stage as and when the convict does not follow the condition.
It is important for the directions as well as the conditions to be presented by the appropriate government for the convict to be aware of the situation and give consent.
These conditions or restrictions by the order of the criminal court can be applied to the liberty of the person or upon his property as well as per the sub-section of this Section.
This is an act of grace and humanity by the executive authority of the nation who on receiving an application gives his or her opinion along with reason as to whether the pardon should be granted or not.

Section 433 of CrPC

Section 433 of the CrPC states the power of the appropriate government to commute a sentence of the convict. The commutation of the sentence means changing the punishment to a less severe one. Under the ambit of the Section it states that the government having appropriate authority may without the consent of the person commute his sentence in the following cases-

A sentence of death, for any other punishment provided by the IPC;
A sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for a fine;
A sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;
A sentence of simple imprisonment, or fine.

Contentions raised by parties to the case

Petitioners

The counsel for the petitioners contended before the Supreme Court of India and stated the following grounds to support his argument-

The counsel contested that the grant of remission, which is described as a pardon in the case at hand, is illegal and therefore should not be granted to respondent no. 2.
The counsel for the petitioner stated that the orders of the Governor to grant a pardon were based on irrelevant facts. They addressed the court by stating that the relevant materials of the case were not considered by the Governor and that the issues and facts of the case were also not held accountable before giving out the decision by the Governor.
Further, they contended that the remission was only based on irrelevant as well as extraneous materials which were presented in the report of the authority and had nothing to do with the case at hand.
The plea of the other respondent (respondent no. 3) was a request for a pardon of her husband and it was based on alleged political rivalry only. Further, the petitioners stated that the claim of political rivalry as the sole basis of granting a pardon is insufficient and therefore the pardon granted should be reconsidered.
Here, they even stated that the Governor did not take the judgement passed by the court into notice. They also underlined the fact that respondent no. 2 was sentenced to a rigorous imprisonment of 10 years which was not taken into account by the Governor of the state.
On the basis of all these arguments, they pleaded and contended before the Hon’ble bench that the judgement of the lower court stating that respondent’s guilt should be taken into account before granting a pardon. Further, they also prayed and pleaded to the Hon’ble bench that the pardon is actually based on irrelevant material presented in the report and therefore should be set aside.

Respondents

The counsel for the respondent stated before the Hon’ble Supreme Court that-

The respondent’s counsel argued in his petition that this case was nothing but a ‘mere political vendetta’ which was conspired by the party of the petitioners.
In a rebuttal to the claim of the petitioner that the material facts were not taken into account, the counsel for the respondents stated that the Governor of the State was presented with all the relevant materials. He also stated that the Governor of the State along with other members of the advisory committee had taken due diligence of all the relevant materials of the case before granting the remission to the accused in this case.
They also highlighted that the petitioner is at fault in the case because they are confused between the pardon and the remission since the case has been filed against the pardon by the Governor however the respondent is granted a remission by the Governor.
On the basis of these arguments, the respondent requested the Hon’ble Court to not interfere in the case as all the materials present point towards the legal grant of remission.
Therefore, they pleaded that this petition should be dismissed since the provision of judicial review has only limited ambit and it cannot bring the powers of the Governor to grant a pardon under its supervision.
Also in relation to the suggestions of Mr. Soli Sorabjee, of lying down guidelines, the councils for the respondent cited the cases of Kehar Singh and Anr. vs. Union of India and Anr. (1988) and Ashok Kumar @ Golu vs. Union of India and Ors. (1991) in order to support and State that there is no need for recommendation guidelines.

Referred case laws

The following cases were referred to the Apex Court to understand whether judicial review over the pardoning power is an adequate step in the direction of delivering justice or not-

Maru Ram and Ors. vs. Union of India and Ors. (1980)

The Supreme Court, in this case, held that the constitutional power is encompassed within the public power and therefore it cannot be exercised without enabling the due process of law. The court explained that it is a must to follow guidelines so that it can ensure that the authority of the power is used in a fair manner and that it is equal for all. Also, this case has been important as it upheld that a pardon cannot be granted merely only for political reasons.

Further, it was this case where the court also stated the reason for granting a pardon to a convict cannot be based on the criteria of religion, caste, colour or political loyalty of one person towards a particular political party. These criteria were stated as irrelevant as well as discriminatory in nature therefore they should not form the basis for granting a pardon. Moreover, this case has been important in indicating that the power of judicial review is to be subjected to boundaries and it cannot be practised by law unless and until a case presents to be of such nature that it requires a judicial review to uphold justice.

Kehar Singh and Anr. vs. Union of India and Anr. (1988)

The case of Kehar Singh and Anr. vs. Union of India and Anr. (1988) was cited by the respondents and it talks about the exercise of the pardoning power of the President as follows-

Under the ambit of this case, the Hon’ble Supreme Court of India stated that Article 72 of the Constitution of India in itself provides sufficient guidelines so as to ensure that the power of remission, granting pardons by the President, is regulated.
Moreover, it was observed in this case that the specific guidelines in order to regulate the use of Article 72 were not deemed necessary even if the Article has a wider amplitude of power. While interpreting the Article the Constitutional Bench stated that there are sufficient guidelines for the executive head of the State to function according to the law.
Also, here the court had even stated that there is no question involved in the case of asking for reasons for the President’s Order.
Further, the absence of any obligation to convey the reasons does not mean there should not be legitimate or relevant reasons for passing the order. The power of pardon needs to be therefore based on relevant reasoning and they cannot be used for political consideration.
Here also, the case of Maru Ram was retracted so as to State that the discriminatory guidelines of religion, caste, colour, and political loyalty are to be disregarded while granting a pardon. Moreover, the power of the President cannot be subjected to judicial review unless and until limitations of the retracted case follow.
The issue in this case was whether the principle of the division of power allows the judiciary to re-evaluate the exercise of the pardoning power or not. While delivering the judgement the Hon’ble Court stated that Article 72 which holds the power to grant pardon is well within the judicial ambit as it is a constitutional power. It simply means that the same can be challenged by judicial review as and when necessary.

Swaran Singh vs. State of Uttar Pradesh & Ors. (1998)

In this case, the Hon’ble Supreme Court held that the Ambit of Article 161 of the Constitution of India the partnering power of the Governor can be re-examined by the judicial authority. It was stated in this case that, if it is deemed necessary as per the law, then the court has the authority to touch the orders of the Governor for examination and this can be done in the following cases-

The nature of the order passed is deemed to be arbitrary;
The intention of the order is mala fide;
When the by-product orders cannot be approved by the law; or
Even in cases when the principles of constitutionalism like those of natural justice are disregarded by the executive authority.

The facts of the case were that a person named Doodh Nath was found guilty of the murder of Joginder Singh. The convict was sentenced to life imprisonment. Aggrieved by the sentence, he filed a special leave petition as well as an appeal in the High Court but did not get any relief from either of them. But, within the next two years, in an astonishing turn of events, his life sentence was reduced and he was granted remission.

When the decision reached the Supreme Court for judicial review the Hon’ble Supreme Court overturned the order by stating that the Governor was not given the opportunity to exercise his power in a just and fair manner. This was said so because the Governor was not provided with relevant pieces of evidence. Therefore, it was not possible for the Governor to make a proper and just decision. As a result, the Governor was urged to re-examine and reassess Doodh Nath’s pardon and plea in light of the new evidence submitted.

Satpal & Anr. vs. State of Haryana & Ors. (2000)

The 2000 case of Satpal was where the Hon’ble Supreme Court had talked about the broad ambit of Article 161 of the Constitution. The court here had stated that this constitutional power of granting a pardon can only be reviewed by a court on certain grounds and that the judiciary would be justified to intervene only when-

When such a power has been exercised without the advice of the government authorities;
When such a power has transgressed the jurisdiction. In other words, it means that the jurisdictional limit of the person granting the pardon has been exceeded. For example, the Governor of Delhi cannot grant pardon to a convict of a murder that took place in the State of Kerala having no relation with Delhi.
When there seems to be no application of mind by the Governor;
When the order of pardon by the Governor was given with mala fide intention; or
When such a pardon is based on some extraneous considerations.

Mansukhlal Vithaldas Chauhan vs. State of Gujarat (1997) and Tata Cellular vs. Union of India (1994)

The cases of Tata Cellular vs. Union of India (1994) and Mansukhlal Vithaldas Chauhan vs. State of Gujarat (1997) were cited to refer to the following court’s observations.

The Hon’ble Supreme Court has the authority to merely review the decisions but not as an appellate court. It means that since the pardon is granted after the trial has been completed, therefore, if the court acts as an appellate court in cases of re-examination of the courts, then it can lead to the substitution of the court’s earlier judgement itself.
Judicial review, therefore, focuses only on the legality of the decision taken by the executive authority and questions whether the authority has exceeded its power, has made an error of law or has been any kind of violation of the principles of natural justice and also determines the way how they have reached this conclusion.
For the Hon’ble court to understand the procedure of parliament’s decision-making in great detail the opinion of Lord Denning was also taken up in this case. He stated that the executive authority often delegates its decision-making power. Since rehearing of all of these decisions is not possible. Therefore, if the decisions taken by the executive are based on any unjust consideration or if it is false and do not consider the critical issues at hand, only then the court should interfere in the process.

Sterling Computers Limited vs. M&N Publications Limited and Ors. (1993)

In this case, the Hon’ble Supreme Court talked in detail about the importance of Judicial review in the decision-making process with the help of Professor Wade’s analysis of administrative law. This analysis dwells into the understanding of the role of the court in the decision-making process and states the following-

The ambit of the power of judicial review should be exercised by the courts with caution. It further stated that the review should be done in such a way that the judgement passed by the public authority should not be overtaken by the judiciary.
Further, the decision taken by the judicial authority should be based on legal reasonableness while also being free from any sort of discretion of the authority.
It was also stated in this case that the judicial bench should not set up strict boundaries on the basis of their personal opinions as that could hinder the balance of power.
The court in the case went on to state that, rather than setting strict boundaries, the judicial bench should always go for objective standards so as to ensure that the authority has enough options while making a decision.
Moreover, the court in the case highlighted that the administrative authorities also have an obligation to act in a fair manner so as to uphold the rule of law and prevent justice from failing in any case. Therefore, the decision in this case was that judicial scrutiny should not stand in the way of administrative action.

U.P. Financial Corporation vs. Gem Cap (India) Pvt. Ltd. (1993)

In this case, the Hon’ble Supreme Court stated that the requirement for administrative authorities to act fairly has been established to uphold the rule of law and prevent failures in justice. Therefore, in this case, the principle of judicial review supported the standards of principles of natural justice. The court also highlighted that the line between the quasi-judicial and the administrative action is very fine and blurred at the moment. Therefore, the judicial scrutiny in the matters of administration should not exceed the limit.

As a result, the court ruled that the High Court in this case lacks the authority to examine quasi-judicial decisions and orders. It was also stated that the court cannot substitute the administrative body’s decision-making in such cases with that of the judicial decision. It was underlined in the court that the judicial authority can only intervene in the actions of the administrative authority when they are deemed to be so unfair or reasonable that no reasonable and prudent man would have acted in that manner, otherwise, the judicial authority cannot intervene.

S.R. Bommai and Ors. vs. Union of India and Ors. (1994)

The case of S.R. Bommai and Ors. vs. Union of India and Ors. (1994) discussed the burden of proof that the Union Government bears when a decree is challenged. It was stated in this case that it is critical to establish an explanation for the measures taken by the executive body. So, in cases when a reasoning is not provided by the executive authority, then the ambit of Judicial review can be exercised. This is so as to ensure that the decision reached by the President or the Governor is not only made public but it is also to ensure justice is presented in black and white.

Judgement of the case

The Hon’ble Supreme Court while delivering the landmark judgement highlighted the cases in which the principle of judicial review becomes undeniable and has to be granted. The order of the President or the Governor under Article 72 or Article 161 respectively can be judicially reviewed on the following grounds:

If the order which has been passed is of such nature that it is without the application of mind;
In cases when the order is mala fide in nature;
When the order has been passed but it is based on extraneous or irrelevant considerations only;
When the relevant materials were present but one not taken into consideration; or
In cases when the order is full of arbitrariness.

The observations of the judges are mentioned below for a thorough understanding of the judgement.

Judgement by Justice Arijit Pasayat

Justice Arijit Pasayat while delivering the judgement remarked that “pardoning power is seen as an act of grace and humanity in civilised countries.” It was also stated in the judgement that without such an authority the political morality of a country would be deemed as. Further, the view that the ability to grant a pardon or a remission was once exclusive to the Royal but in the modern world it is in the hands of the executive branch of the government was also presented in the judgement. Moreover, Justice Arijit while delivering his judgement points out the words of Justice Holmes who was a judge in the Supreme Court of the United States of America. The words of Justice Holmes were “pardon is a constitutional scheme rather than an act of personal/private grace.”

In the judgement delivered the idea that the power to grant a pardon to a Convict has its roots in the public good and welfare of the Nation was also stated. This power of granting a pardon is placed in the constitution of India so as to ensure that injustice is not committed by the authorities and if in any case it is done, then the same can be rectified. Since this power is restored to the hands of the executive authority, therefore, it is the duty and work to ensure that society is free from injustice and that the guilty also can be rehabilitated into society.

Further, the history of the right to pardon was also discussed in great detail in this case. The historical background of the Mercy petition comes from the State of England where this was exercised since time immemorial and is one of the important attributes defining sovereignty in the region. Moreover, while discussing the history of this subcontinent of India, the court remarked that India has taken this power of granting pardon from the United States of America and its constitution. The provision of granting the pardon is stored in the hands of the President and the Governors in both the USA and India.

Earlier, this system was brought into India in order to eliminate injustice but with the changing times and emergence of a new era, it was seen as an important part of the reformative theory of punishment. It clearly aids in reintegrating the convict back into society, rather than restricting him or her from society.

Further, the Hon’ble Court also cited the Ninth Edition of Sir William Wade’s book whose name is Administrative Law. The court took reference from this book in order to understand the historical prospect of mercy petition. The book deals with the position of mercy petition as a royal prerogative used by the blue blood. Moreover, this book states that the courts can review the royal prerogative in the following circumstances-

When the act is done by someone who is working in the capacity of a minister; or
When the acts of the ones who fall under authority delegated to him by prerogative order in the Council are present.

Therefore, in these cases, the principles of natural justice would apply and it would be appropriate in all senses to review the pardon granted by them.

Need of reason by Governor while granting pardon

This case at hand is of paramount importance since it also considers whether the Governor has to provide reasons for the decision taken by him in regard to the pardon granted. The court stated that, since there is no statutory obligation to provide a reason, it does not simply mean that there should not be a legitimate reason for passing such an order. It means that, even though the statute does not state that the executive authority has to provide a reason and opinion while granting or not granting an apartment, it does not automatically mean that the reason should not, even be there to give such an order. Rather, it actually states that there should be a legitimate as well as relevant reason for passing the order of pardon, remission, etc. and that the same should be cited.

In this case at hand, the Hon’ble judge noted that the Governor before granting the pardon was informed about the views of various district-level officials including the Superintendent of Police, the District Collector, Kunoor, and the District Probation Officer. Also, the views of the Superintendent of the jail, Central Prison, Cherlapally were obtained by the court to be analysed in order to reach a decision.

The Hon’ble Court here pointed out and underlined that the report of the District Collector which was made on 9 December 2004 and the letter of the Revenue Divisional Officer which was dated 8 December 2004 both had indicated that there was no objection in regards to the release of respondent no. 2 on a premature basis. This report was stated to be based on respondent no. 2’s good conduct and character.

These were based on the earlier reports that he led an ordinary life on his escort parole (19 May 2004 to 07 August 2004) and even on free parole (20 October 2024 to 06 November 2004). Further, the District Collector had also recommended a premature release on the basis of the District Collector’s report.

The court also considered the District Probation Officer’s report. This was the report which concluded that if the respondent was released early from jail, then in such a case he would be secure. The security blanket would be there for respondent no. 2 due to his wife who was the sitting MLA at that time.

Moreover, the information of the report which was deemed as an ‘extraneous report of District Probation Officer’ by the plaintiff regarding the convict states the following about him-

The convicted person is respondent no. 2 – Gouru Venkata Reddy. He is the son of Late Sh. Janardhan Reddy. He is from an upper-caste Reddy family that lives in Brahmanakotkur village, Nandikotkur Mandal and Taluk.
The family history of the convict includes two deceased sisters and parents who have also died. It is only the convict’s grandmother, Smt. Ratnamma who herself is an elderly woman without a male carer in her home. She was also the one who had requested for the convict’s return back to home in order to treat her with medical attention.
Previously, the convict had run in elections and narrowly lost the same to the opposition. Investigations found that he was a member of the Congress party and was the victim of political rivalry, which resulted in his electoral defeat.
In subsequent elections, the convict’s wife, Smt. Saritha Reddy contested for the seat in the Andhra Pradesh Legislative Assembly and was successfully elected. Therefore, the report deemed that the convict would be safe with her as she was powerful.
Moreover, the report also mentioned that the villagers, including the local President, Secretary, and elders, have stated that releasing the offender will lead to no risk to his safety in the village under any circumstances.
Further, regarding the lifestyle of respondent no. 2, the report stated that when he was on parole he had changed his lifestyle. The report also stated that since then he has been working as an agriculturalist. Further, it also stated that the convict was spending a normal and peaceful life in the village.
Furthermore, it was reported that he has been a ‘good congress worker’ during his tenure in the political party.
Moreover, the report also highlighted that the convict had provided employment to many people in the village.
According to the report, respondent no. 2 was falsely trapped in the web of a murder case for political purposes. He also stated that he was not involved in the murder and was being falsely trapped as an accused in this case. He further stated that this was done by presenting false witnesses and creating a false narration against him.
It was also stated in the report that since the events of the whole event, he has admitted his mistakes and pursued friendly ties with the opposition parties as well.
It was also noted in the report that a study of the convict’s history was done and the police found out that he was not a Naxalite, dacoit, or habitual offender of any kind.

The Hon’ble court here stated that respondent No. 2’s statement that he was a ‘good congress worker’ and that he was not involved in the murder plot was utterly fallacious. Also, the court held that these cannot be deemed as a ground for granting pardon or remission to a convict. The court deemed that the question of his “good Congress worker” had no relevance to the issue at hand. Further, the statement that the convict was defeated in previous elections due to political conspiracy was surprising in the enquiry.

The court revisited the Superintendent of Police’s report which indicates that there would be no reaction in BrahmanaKotkur village and Nandikotkur town if the prisoner is released early. However, this report is of after elections dated 06 December 2004 when the wife of respondent no. 2 became a sitting MLA. It was interesting to note by the Hon’ble court that the very same officer had before elections reported the likeliness breach of peace, law and order if respondent no.2 is released.

The court reasoned that this change in the report of the official was “the only reason why a pariah becomes a messiah appears to be the change in the ruling pattern.” Therefore, this called for greater scrutiny when pardon/remission authority is applied in order to exercise robust bureaucracy. Further, the court also pointed out that there was no mention of the pendency of Criminal case No. 411 of 2000 in respondent No. 3’s petition. Therefore the court pointed out that the necessity of the law is that the materials and evidence which are required for consideration of whether the pardon should be granted or not should be dealt with only with genuine and clean hands and only then can the authorities reach a valid conclusion.

The court also discovered that the extraneous and superfluous materials during the decision-making process were not necessary and revoked the remission that was granted by the Governor of Andhra Pradesh to respondent no. 2. Further rather than acting as an appellant authority the court only reviewed the process and came to the conclusion that the petition is pending for rec consideration by the Governor. Further, the Governor was allowed by the court to take notes and perform all the necessary investigations to ensure that all the relevant and important materials were used in order to grant pardon if the case allows.

Judgement by Justice S.H. Kapadia

Justice S.H. Kapadia in the judgement authored by him gives reverence to the conclusion reached by Justice Arijit Pasayat. Further, he goes on to study and discuss the exercise of the executive authority’s power of granting pardons, reprieves, and remissions. He goes on to say that the powers were once the prerogative of the royals; however, today these powers are concerned with the executive authority of the nation. He states that under the ambit of the constitution of India and Articles 72 and 161 ensure that the President and the Governor of the State have the right to grant a pardon.

According to Justice Kapadia, the power of granting a pardon is not a privilege but a discharge of official responsibility. He believes that it is to be done only for the benefit of the people in the nation and for the welfare of the society at large.

In this judgement, it is stated that only the President and the Governor can be a judge by determining whether the evidence presented before them in order to grant a pardon is sufficient or not. Further, he believes that only these executive authorities are the ones who can determine whether the pardon will be granted to the person or not. Moreover, he says that even though this power is only constructed in the hands of the executive authority it is important to note that they fall under the ambit of the Constitution of India as well. There it is believed that they are not following the procedures and the principles of the basic structure of the Constitution of India.

The power of the Governor is enshrined under Article 161 of the Constitution of India whereas that of the President is under Article 72. Since these powers follow the basic structure and respect the fundamental rights of the people, they are not to be discriminated against in nature. It means that the pardon should not be granted on the basis of any kind of social, financial, or personal factors; rather, they should be focused on the substantial material provided. to be immune from the ambit of judicial review rather it is subjected to the rule of law. Therefore it is important to ensure that the decision of the executive is based on legal certainty as well as fairness and justice principles.

Rule of law

The “rule of law” highlights the importance of fairness and legitimacy. This provision helps ensure that the laws which are enacted are all consistent with the constitution of India as well as the natural principles of justice. Moreover, the concept of government, according to the law, requires that the rules should be framed and exercised with the objective of ensuring justice for all. They, for the work of the executive authority, ensure that while delivering their judgement on whether the pardon should be granted or not they keep in mind the interest of both the convict as well as the result of their judgement on the family of the victim and the society at large. As a result, respecting this principle of law is critical to maintaining the integrity of the rule of law.

Therefore, it is the duty of the courts of India to ensure that when a pardon is granted it is based in accordance with the principles of the rules of law. It is the duty of the executive authority also to ensure that justice is delivered in a fundamental setup. This is why Justice Kapadia in his judgement had noted that the primary constitution for the power of judicial review is the maintenance of the rule of law.

Furthermore, Justice Kapadia also stated that “executive clemency is a discretionary power, not a privilege, but a performance of official duty” while delivering the judgement. This duty is one which mitigates the punishment of the convict without addressing whether he/she is innocent or guilty therefore the judicial prerogative to review such an act is necessary.

The pardon power is not immune to the ambit of the judicial review. Therefore, the decisions must indicate power exercise by applying manageable standards; manageable standards here refer to standards expected in a functioning democracy. Therefore, as and when these are reached, the courts will not have to interfere even in a supervisory jurisdiction.

In cases when the pardon is obtained from the Governor of the State or the President of the nation on the basis of a mistake, misrepresentation or even fraud, then such a pardon can be cancelled. This is why the review by the judiciary is very important so as to ensure that the pardon granted is without any kind of malafide motive.

Therefore, the power of granting a pardon under the ambit of Articles 72 and 161 is not a straight jacket formula rather each of them depends on the facts and the circumstances of the case. So, it becomes important to judge each and every case on the necessity, the justification, the facts and circumstances of the case since no single rule can be applied in all the cases. The prerogative power is, therefore, a flexible power and it should be adapted to meet the circumstances of the particular case and it may differ from case to case.

Rationale behind the judgement

The Hon’ble Supreme Court of India in its judgement has stated that the administrative authorities can help in the removal of injustice. The executive has the power to prevent any sort of injustice against the person who was convicted of an offence. This is possible because of the provision of granting a pardon. This can also prevent the harshness in criminal proceedings. This power ensures that there is a last door present for the convict in cases when the judicial authorities have applied the law in a very hard manner or when the parties feel that they have not been heard or when there are errors in the judgement delivered.

Moreover, the court in the judgement has also said that with the enforcement of judicial review, they can ensure that the provision of granting a pardon is not being used based on bias by the political party. Judicial review has also been held to be a vital source in recognising whether the actions of the President or the Governor are consistent with the principles of natural justice and the basic structure of the nation. However, it is important to remember in such cases the court only acts as a review authority and that it does not have appellate jurisdiction.

The Supreme Court, while understanding the power of granting a pardon and the ambit of judicial review referred to the following landmark precedents. These cases are the ones that have attempted to answer whether the nature and subject matter of the President’s decision can be subjected to court proceedings or not.

The case of Kehar Singh vs. The Union of India (1988) held that, even if the Apex Court of the nation has given a judicial decision, the President has the power and authority to exercise his or her administrative leniency and learn about the merits of the case.
The case Tata Cellular vs. Union of India (1994) was of paramount importance as this is where the court had held that the judicial bench does not act as an appeal court but only works in the revival capacity.

It was ruled that courts could review Presidential pardons but not as an appeal court. This review is to be done in order to overturn any kind of unjust or arbitrary rulings. This authority of pardoning by Presidential consent is limited and only applies after the order has been given.

Judge Pasayat further cited Sir William Wade’s decision, claiming that the ambit of Article 72 and its wording does not establish the precise condition for using the power. Also, it was stated in this context that the doctrine of reasonable power must always go hand in hand with the principles of law of the constitution. However, it was also pointed out that the court should not try to overturn the decision of the President but work on how the decision was reached. If the order of remission is of such a nature that it cannot be sustainable, then the petition is to be denied. This is to be done because the Governor also has the ability and possesses the absolute authority to assess the relevant materials supplied to them by the authorities and also make any inquiry before giving out a decision on the pardon of the convict’s sentence.

Further, the Hon’ble court here had requested the presence of Mr. Soli J. Sorabjee as the Amicus Curiae to find ways to resolve grievances. This step was taken by the court while keeping in mind the large number of cases wherein the ambit of pardon as well as remission granting powers were questioned and challenged. Mr. Soli underlined that there is an increase in the frequency in which the pardon and remissions are being granted to the individuals and the court needs to lay down specific guidelines in this regard. Further while explaining the power of granting a pardon and remission along with the principles of Judicial review, Mr. Soli had also pointed out that there is a need for the creation of guidelines. He believed that these guidelines would help prevent the misuse of the pardoning power by the executive authority of the State and ensure that justice is delivered in a fair manner.

Critical analysis of Epuru Sudhakar & Ors. vs.Government of Andhra Pradesh & Ors. (2006)

The administrative act of granting a pardon is in the hands of the executive and the question here was whether it will fall within the ambit of judicial review or not. Since it is a power granted by the Constitution of India, it is fair to consider that the principle of balance of powers ensures that the pardon granted by the State is to be reviewed as well.

This case has been an important judgement in showcasing that the judicial authority, which is the courts, has the power to intervene in order to safeguard public morals and to uphold the principles of natural justice. This is to ensure that in India that is Bharat the moral compass of welfare is to be deemed as important. Moreover, this case has clearly stated that even after the completion of the trial process the convict has an opportunity to present his or her case before the executive authority. However, in the cases where the decision passed by the executive authority is deemed to be not based on reasonable and prudent conclusions, the judiciary can check. All of this is done in order to uphold justice in the State of India and ensure that everyone is served with justice.

The living law of the land is the constitution of India and the judiciary acts as a watchdog. It ensures that there is no kind of disruption or curtailment of one’s rights and that in cases where the pardon has been granted by disinformation or deception then it can be turned into void. Even in cases when a pardon is procured by the party by using false and fraudulent representations of any kind or when an individual or a party intentionally suppresses the truth, then also in such cases a pardon will be deemed as void, although the person pardoned may have had no hand in the act of fraud.

Since the Parliament of India has the authority to make decisions in order to ensure that the nation is a welfare state and the work of the judiciary is to interpret the law of the land, it is only because of the provisions of the balance of power that both are able to keep a check on each other. The decision taken by the judiciary can have some kinds of errors therefore the last resort is given to the executive authority.

However, since the decision of this executive can be based on some kind of bias, the provision of judicial review is present. It is important to remember that judicial review does not dwell on the merits and demerits of the case but focuses on how the decision was reached therefore it is not an appellate authority in this case. This structure of the balance of power not only ensures a healthy balance between the three arms of the government but also ensures the welfare of the citizens as the utmost duty.

Conclusion

This landmark case of Epuru Sudhakar and Ors. vs. The Government of Andhra Pradesh and Ors. is an important precedent. This case has helped in laying down the foundation that the pardoning powers of the President of the nation as well as the Governor of the State can also be reviewed by the judicial authorities. It also acts as a contributing factor because it ensures that human rights are not violated and that the principles of natural justice are appealed in the nation.

It should be noted that the royal prerogative in today’s time and world does not grant immunity from review because the motto of the present world is to provide justice to all. Therefore, even the pardons, remissions, etc granted by the executive can be checked on by the judiciary, if there is no reasoning supplied by the executive or if such reasoning is not deemed right. Also, the actions of the ministers by way of delegation of power fall within the ambit of judicial review. In today’s time and place, it is necessary to review the power of granting a pardon so as to ensure justice is without any encumbrance and that no one in the society is left unheard.

Frequently Asked Questions (FAQs)

What is the difference between pardon and remission?

A pardon as the name suggests is a form of mercy whereby the convict is forgiven and set free. Here the person is put into the same position as if the offence was never committed by him. However, remission means the act of shortening the length of the sentence. Here the nature of the sentence does not change, only the change of duration takes place.

Is pardon a right of the convict?

A pardon is not a right of the convict rather it is a form of last mercy appeal. It is dependent on the executive authorities, whether they wish to approve the plea or not.

Is this mercy power an exclusive right of the executive head?

After the case of Union of India vs. V. Sriharan @ ,Murugan & Ors. (2015) the centre claims that the President has the ‘exclusive powers’ to decide regarding remission of the four convicts in the case of Rajiv Gandhi’s assasination. The Hon’ble Supreme Court stated that even though the President has the power to grant mercy to a convict as per the Constitution of India, still he/she cannot exercise it independent from the government.

Therefore, the court even pointed towards the case of Maru Ram to reinstate that the President has to act on the advice of the ministers before granting mercy. He/she can also send it for reconsideration once only if they are not satisfied by the opinion of the Council of Ministers but after the reconsideration, the President is bound by it.

References

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