http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

CASE NO.: Writ Petition (crl.)  284-285 of 2005

PETITIONER: Epuru Sudhakar & Anr.                                            

RESPONDENT: Govt. of A.P. & Ors.                                             

DATE OF JUDGMENT: 11/10/2006

BENCH: S. H. KAPADIA

JUDGMENT: J U D G M E N T

KAPADIA, J.

       Although, I respectfully agree with the conclusion containing the  opinion of brother, Arijit Pasayat, the importance and intricacies of the  subject matter, namely, judicial review of the manner of exercise of  prerogative power has impelled me to elucidate and clarify certain crucial  aspects. Hence this separate opinion.

       Pardons, reprieves and remissions are manifestation of the exercise of  prerogative power. These are not acts of grace. They are a part of  Constitutional scheme. When a pardon is granted, it is the determination of  the ultimate authority that public welfare will be better served by inflicting  less than what the judgment has fixed.

       The power to grant pardons and reprieves was traditionally a Royal  prerogative and was regarded as an absolute power. At the same time, even  in the earlier days, there was a general rule that if the King is deceived, the  pardon is void, therefore, any separation of truth or suggestion of falsehood  vitiated the pardon. Over the years, the manifestation of this power got  diluted.

       The power to grant pardons and reprieves in India is vested in the  President and the Governor of a State by virtue of Articles 72 and 161 of the  Constitution respectively.

       Exercise of Executive clemency is a matter of discretion and yet  subject to certain standards. It is not a matter of privilege. It is a matter of  performance of official duty. It is vested in the President or the Governor, as  the case may be, not for the benefit of the convict only, but for the welfare of  the people who may insist on the performance of the duty. This discretion,  therefore, has to be exercised on public consideration alone. The President  and the Governor are the sole judges of the sufficiency of facts and of the  appropriating of granting the pardons and reprieves. However, this power is  an enumerated power in the Constitution and its limitations, if any, must be  found in the Constitution itself. Therefore, the principle of Exclusive  Cognizance would not apply when and if the decision impugned is in  derogation of a Constitutional provision. This is the basic working test to be  applied while granting pardons, reprieves, remissions and commutation.

       Granting of pardon is in no sense an overturning of a judgment of  conviction, but rather it is an Executive action that mitigates or set aside the  punishment for a crime. It eliminates the effect of conviction without  addressing the defendants guilt or innocence. The controlling factor in  determining whether the exercise of prerogative power is subject to judicial  review is not its source but its subject matter. It can no longer be said that  prerogative power is ipso facto immune from judicial review. An undue  exercise of this power is to be deplored. Considerations of religion, caste or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

political loyalty are irrelevant and fraught with discrimination.   These are  prohibited grounds. Rule of Law is the basis for evaluation of all decisions.  The supreme quality of the Rule of Law is fairness and legal certainty. The  principle of legality occupies a central plan in the Rule of Law. Every  prerogative has to be the subject to the Rule of Law. That rule cannot be  compromised on the grounds of political expediency. To go by such  considerations would be subversive of the fundamental principles of the  Rule of Law and it would amount to setting a dangerous precedent. The Rule  of Law principle comprises a requirement of "Government according to  law". The ethos of "Government according to law" requires the prerogative  to be exercised in a manner which is consistent with the basic principle of  fairness and certainty. Therefore, the power of executive clemency is not  only for the benefit of the convict, but while exercising such a power the  President or the  Governor, as the case may be, has to keep in mind the  effect of his decision on the family of the victims, the society as a whole and  the precedent it sets for the future.

The power under Article 72 as also under Article 161 of the  Constitution is of the widest amplitude and envisages myriad kinds and  categories of cases with facts and situations varying from case to case. The  exercise of power depends upon the facts and circumstances of each case  and the necessity or justification for exercise of that power has to be judged  from case to case. It is important to bear in mind that every aspect of the  exercise of the power under Article 72 as also under Article 161 does not fall  in the judicial domain. In certain cases, a particular aspect may not be  justiciable. However, even in such cases there has to exist requisite material  on the basis of which the power is exercised under Article 72 or under  Article 161 of the Constitution, as the case may be. In the circumstances,  one cannot draw the guidelines for regulating the exercise of the power.                  As stated above, exercise or non-exercise of the power of pardon by  the President or the Governor is not immune from judicial review. Though,  the circumstances and the criteria to guide exercise of this power may be  infinite, one principle is definite and admits of no doubt, namely, that the  impugned decision must indicate exercise of the power by application of  manageable standards and in such cases courts will not interfere in its  supervisory jurisdiction. By manageable standards we mean standards  expected in functioning democracy. A pardon obtained by fraud or granted  by mistake or granted for improper reasons would invite judicial review. The  prerogative power is the flexible power and its exercise can and should be  adapted to meet the circumstances of the particular case. The Constitutional  justification for judicial review, and the vindication of the Rule of Law  remain constant in all areas, but the mechanism for giving effect to that  justification varies.

       In conclusion, it may be stated that, there is a clear symmetry between  the Constitutional rationale for review of statutory and prerogative power. In  each case, the courts have to ensure that the authority is used in a manner  which is consistent with the Rule of Law, which is the fundamental principle  of good administration. In each case, the Rule of Law should be the  overarching constitutional justification for judicial review. The exercise of  prerogative power cannot be placed in straight jacket formulae and the  perceptions regarding the extent and amplitude of this power are bound to  vary. However, when the impugned decision does not indicate any data or  manageable standards, the decision amount to derogation of an important  Constitutional principle of Rule of Law.

We appreciate the assistance rendered by Mr. Soli J. Sorabjee as  amicus curiae in this matter.

With these words, I agree with the conclusions in the opinion of  brother, Arijit Pasayat.