# EPURU SUDHAKAR AND ANR v. GOVT. OF A.P. AND ORS

- **Citation:** [2006] Supp. 7 S.C.R. 81
- **Court:** Supreme Court of India
- **Decided:** 2006-10-11
- **Bench:** Arijit Pasa Yat, S.H. Kapadia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/epuru-sudhakar-and-anr-v-govt-of-a-p-and-ors-21867
- **Pages:** 37

## Headnote

B
Constitution of India, 1950; Articles 72 and 161:
Grant of pardon by President/Governor-Judicial Review-Scope ofHeld: Limited judicial review of the exercise/non-exercise of pardon power C
by the President/Governor available in certain cases-Pardoning power
could be exercised as an act of grace and humanity in proper casesExercise of such power is an exercise in futility in the absence of reasonsThe Government could rescind or cancel the pardon when it come to know
that it has been obtained by fraud/patent/misrepresentation/manifest mistake- D
Jn the facts and circumstances of the case, it is clear that irrelevant and
extraneous material entered into the decision making process, thereby
vitiating it and facts about pendency of criminal cases not disclosed in the
petition-Hence the impugned order granting remission is unsustainable
and set aside-However, it is open to the Governor to make further enquiries
as considered necessary for ascertaining relevant factors and the State E
government could re-treat the petition as pending for re-consideration to
decide the question of grant of pardon-Code of Criminal Procedure, 1973Sections 432 to 435-Penal Code, 1860-Ss. 54-55-General Clauses Act,
1897-Ss.14 and 21.
Father of Petitioner No.I and another person were allegedly murdered F
by respondent No.2. The matter came up before this Court, which was disposed
of by judgment dated 19.11.2003 altering conviction of respondent No.2 from
one under Section 302 IPC to Section 304(1) read with Section 109 IPC and
custodial sentence of 10 years' rigorous imprisonment was imposed. In the
meantime, respondent No.3, wife of respondent no.2-convict, contested the G
election to the Andhra Pradesh Assembly. She was elected as member of
Legislative Assembly. On 14.5.2004 she made a representation for grant of
parole to her husband, respondent No.2. It was granted and extended from
time to time. Later, respondent No.3 made a representation to the State
Government seeking pardon to her husband by exercise of power under Article
81
H
82
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A 161 of the Constitution. The Governor granted remission of the unexpired
sentence to respondent No.2. Aggrieved, the son of the deceased filed a writ
petition.
The petitioner contended that the grant of remission/pardon to
respondent no.2 was illegal as relevant materials were not placed before the
B Governor, and thus, the order was passed by the Governor without application
· of mind; that the factual scenario has not been placed before the Governor in
the proper perspective; that the sole basis on which respondent No.3 asked
for pardon was alleged implication in false cases due to political rivalry. In
view of this Court's judgment holding the respondent No.2 guilty, the said
C plea could not have been even considered as a basis for grant of pardon; and
that since the grant of pardon is based on consideration of irrelevant materials
and non-consideration of relevant materials, it is liable to be set aside.
The respondent-State contended that the petition is the outcome of a
political vendetta; that all relevant materials have been taken into account by
D the Governor before passing the order granting remission; that the petitioner
has confused between pardon and remission of sentence; and that since
materials existed which warranted the grant of remission, no interference in
the matter is called for.
Partly allowing the petition, the Court
E
HELD: Per Arijit Pasayat, J.
1.1. The philosophy underlying the pardon power is that "every civilized
country recognizes, and has therefore provided for, the pardoning power to
be exercised as an act of grace and humanity in proper cases. Without such
F a power of clemency, to be exercised by some department or functionary of a
Government, a country would be most imperfect and deficient in its political
morality, and in that attribute of Deity whose judgments are always tempered
with mercy." [93-D, E)
G
American Jurisprudence, Secon

## Text

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EPURU SUDHAKAR AND ANR.
A
v.
GOVT. OF A.P. AND ORS.
OCTOBER 11, 2006
[ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]
B
Constitution of India, 1950; Articles 72 and 161:
Grant of pardon by President/Governor-Judicial Review-Scope ofHeld: Limited judicial review of the exercise/non-exercise of pardon power C
by the President/Governor available in certain cases-Pardoning power
could be exercised as an act of grace and humanity in proper casesExercise of such power is an exercise in futility in the absence of reasonsThe Government could rescind or cancel the pardon when it come to know
that it has been obtained by fraud/patent/misrepresentation/manifest mistake- D
Jn the facts and circumstances of the case, it is clear that irrelevant and
extraneous material entered into the decision making process, thereby
vitiating it and facts about pendency of criminal cases not disclosed in the
petition-Hence the impugned order granting remission is unsustainable
and set aside-However, it is open to the Governor to make further enquiries
as considered necessary for ascertaining relevant factors and the State E
government could re-treat the petition as pending for re-consideration to
decide the question of grant of pardon-Code of Criminal Procedure, 1973Sections 432 to 435-Penal Code, 1860-Ss. 54-55-General Clauses Act,
1897-Ss.14 and 21.
Father of Petitioner No.I and another person were allegedly murdered F
by respondent No.2. The matter came up before this Court, which was disposed
of by judgment dated 19.11.2003 altering conviction of respondent No.2 from
one under Section 302 IPC to Section 304(1) read with Section 109 IPC and
custodial sentence of 10 years' rigorous imprisonment was imposed. In the
meantime, respondent No.3, wife of respondent no.2-convict, contested the G
election to the Andhra Pradesh Assembly. She was elected as member of
Legislative Assembly. On 14.5.2004 she made a representation for grant of
parole to her husband, respondent No.2. It was granted and extended from
time to time. Later, respondent No.3 made a representation to the State
Government seeking pardon to her husband by exercise of power under Article
81
H
82
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A 161 of the Constitution. The Governor granted remission of the unexpired
sentence to respondent No.2. Aggrieved, the son of the deceased filed a writ
petition.
The petitioner contended that the grant of remission/pardon to
respondent no.2 was illegal as relevant materials were not placed before the
B Governor, and thus, the order was passed by the Governor without application
· of mind; that the factual scenario has not been placed before the Governor in
the proper perspective; that the sole basis on which respondent No.3 asked
for pardon was alleged implication in false cases due to political rivalry. In
view of this Court's judgment holding the respondent No.2 guilty, the said
C plea could not have been even considered as a basis for grant of pardon; and
that since the grant of pardon is based on consideration of irrelevant materials
and non-consideration of relevant materials, it is liable to be set aside.
The respondent-State contended that the petition is the outcome of a
political vendetta; that all relevant materials have been taken into account by
D the Governor before passing the order granting remission; that the petitioner
has confused between pardon and remission of sentence; and that since
materials existed which warranted the grant of remission, no interference in
the matter is called for.
Partly allowing the petition, the Court
E
HELD: Per Arijit Pasayat, J.
1.1. The philosophy underlying the pardon power is that "every civilized
country recognizes, and has therefore provided for, the pardoning power to
be exercised as an act of grace and humanity in proper cases. Without such
F a power of clemency, to be exercised by some department or functionary of a
Government, a country would be most imperfect and deficient in its political
morality, and in that attribute of Deity whose judgments are always tempered
with mercy." [93-D, E)
G
American Jurisprudence, Second Edition, Volume 59, referred to.
1.2. It is fairly well settled that the exercise or non-exercise of pardon
power by the President or Governor, as the case may be, is not immune from
judicial review. Limited judicial review is available in certain cases. 199-BI
Biddle v. Perovich, 71 L. Ed. 1161, referred to.
H
, ..
•
-
...
·~·-
•
EPURU SUDHAKAR v. GOVT. OF A.P.
83
Framing of India's Constitution: A Study, Second Edition by Dr. A
Subhash C Kashyap, referred to.
Administrative Law, Ninth Edition by Sir William Wades; American
Jurisprudence, Second Edition, Volume 59 and "Pardon and Parole", Volume
67-A of Corpus Juris Secundum, referred to.
1.3. Judicial review of the order of the President or the Governor under
Article 72 or Article 161, as the case may be, is available and their orders
can be impugned on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is ma/a fide;
(c) that the order has been passed on extraneous or wholly irrelevant
considerations;
B
c
(d) that relevant materials have been kept out of consideration;
D
(e) that the order suffers from arbitrariness. (103-H; 104-A-B(
Kehar Singh and Anr. v. Union of India and Anr., (1989) I SCC 204;
Swaran Singh v. State of U.P., (1998) 4 SCC 75; Satpal and Anr. v. State of
Haryana and Ors., (2000) 5 SCC 170; Bikas Chatterjee v. Union of India, E
[2004) 7 SCC 634 and Mansukhlal Vithaldas Chauhan v. State of Gujarat,
[ 1997) 7 sec 622, referred to.
1.4. The question whether reasons can or cannot be disclosed to the
Court when the same is challenged was not the subject matter for
consideration. In any event, the absence of any obligation to convey the reasons F
does not mean that there should not be le~itimate or relevant reasons for
passing the order. Since there is a power of judicial review, however, limited
it may be, the same can be rendered to be an exercise in futility in the absence
of reasons. ( 105-E; 106-E I
Ashok Kumar@ Golu v. Union of India and Ors., [1991( 3 SCC 498 G
and Kehar Singh and Anr. v. Union of India and Anr., (1989( I SCC 204 and
S.R. Bommai and Ors. v. Union of India and Ors., (1994) 3 SCC I, referred
to.
Padfield and Ors. v. Minister of Agriculture, Fisheries and Food and H
84
SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.
A Ors., 1196811 All E.R. 694 and Muhammad Sharif v. Federation of Pakistan,
(PLD (1988) Lah 725, referred to.
2.1. Sections 14 and 21 of the General Clauses Act deal with powers
conferred to be exercisable from time to time and a power to issue, to include
power to add to, amend, vary or rescind notifications, orders, rules or byeB laws.1107-CI
Sampat Prakash v. State of J & K, AIR (1970) SC 1118 and, referred
to.
"Pardon and Parole" by Corpus Juris Secundum, Volume 67-A,
C referred to.
2.2. If it comes to the knowledge of the Government that the pardon has
been obtained on the basis of manifest mistake or patent misrepresentation
or fraud, the same can be rescinded or cancelled. [108-Fl
D
3.1. In the instant case, the Collector does not appear to have made any
independent enquiry on his own. In the report, the District Probation officer
has stated that if Respondent No.2 is prematurely released his life would be
safe because his wife is a sitting MLA and she is having a police security.
Further he was having a strong hold in the village and there is no opposition
E in the village. The portion of the report shows as to how extraneous materials
which had no relevance formed the foundation of the report. [113-A, Bl
R. v. Secretary of State for the Home Department, ex parte Bentley,
11993] 4 All E.R. 442, referred to.
F
"Judicial Review of Administrative Action" (Fifth Edition) by Lord
Woolf and "The Constitution of United States of America", referred to.
3.2. The Superintendent of Police has, in his report, stated that there
will be no reaction in the village and the town if the pri:>oner releases
prematurely. Before the elections, the same officer had earlier reported that
G on account of respondent No.2's release on parole, there was likelihood of
breach of peace and law and order if he visits Nandikotkur Assembly
Constituency. The only reason why a pariah becomes a messiah appears to be
the change in the ruling pattern. With such pliable bureaucracy, there is need
for deeper scrutiny when power of pardon/remission is exercised. 1114-D, E]
H
3.3. The question of the convict being a "good Congress Worker" has
•
EPURU SUDHAKAR v. GOVT. OF A.P.
85
"'
no relevance to the objects sought to be achieved i.e. consideration of the A
question whether pardon/remission was to be granted. Equally surprising is
the statement to the effect that during enquiry it was revealed that the convict
is Congress worker and by political conspiracy he was defeated in the
elections conducted earlier. (114-B, CJ
3.4. It appears that in the petition filed by respondent No. 3 there is no B
mention about pendency of a Criminal case. The counsel for the respondent
No.I-State submitted that though this fact was not mentioned by respondent
No.3 in the petition yet the State Government considered the effect of the
pendency of that petition. This certainly is a serious matter because a person
who seeks exercise of highly discretionary power of a high constitutional
authority, has to show bona fides and must place materials with clean hands. c
(114-E, FJ
4. When the principles of law are considered in the factual background
it is clear that irrelevant and extraneous materials entered into the decision
making process, thereby vitiating it. The order granting remission which is
impugned in the petitions is clearly unsustainable and is set aside. However, D
. t
it is open to respondent No. I to treat the petition as a pending one for the
purpose of re-consideration. It shall be open to the Governor to take note of
materials placed before him by the functionaries of the State, and also to make
such enquiries as considered necessary and relevant for the purpose of
ascertaining the relevant factors otherwise. ( 11-G-H; 115-A)
E
Per Kapadia, J. (Supplementing):
I.I. 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, i.t is the determination of
the ultimate authority that public welfare will be better served by inflicting F
less than whatthe judgment has fixed. (115-C)
1.2. 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. G
(115-D, E)
1.3. 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
,.r 'I'
performance of official duty. It is vested in the President or the Governor, as H
86
SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.
A the case may be, not for the benefit of the convict only, but for the welfare of
/lo
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
appropriateness of granting the pardons and reprieves. However, this power
B
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. (115-F, G, HJ
,,
c
1.4. 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 mstter. [116-A, BJ
D
2. 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
1legality occupies a central plan in the Rule of Law. Every prerogative has to
be Rule of Law. That rule cannot be compromised on the grounds of political
E
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
F 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. [l 16-C, D, EJ
3.1. It is important to bear in mind that every aspect of the exercise of
G the power under Article 72 as also under Article 161 of the Constitution 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.
' --.
H
[116-G, HJ
EPURU SUDHAKAR v. GOVT. OF A.P. (PASA Y AT. J.]
87
3.2. The Constitutional justification for judicial review, and the A
vindication of the Rule of Law remain constant in all areas, but the mechanism
for giving effect to that justification varies. (117-C(
3.3. 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 B
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 C
decision does not indicate any data or manageable standards, the decision
amounts to derogation of an important Constitutional principle of Rule of Law.
(117-C, D, El
CIVIL ORIGINAL JURISDICTION : Writ Petition (Cr!) Nos. 284-285 of
2005.
Under Article 32 of the Constitution of India.
Jaideep Gupta, .soli J. Sorabjee (A.C.) Mukul Rohtagi, Veera Reddy,
C.S.N. Mohan Roa, P.H. Parekh (A.C.) Sumit Goel, Rukmani Bobde, Gargi
Hazarika and A. Srinivasan for the Petitioners.
Ranjit Kumar, D. Bharathi Reddy, P. Vinay Kumar and Sneha Bhaskaran
for the Respondents.
T.R. Andhyarujina, Altaf Ahmad, G.N. Reddy, Asis and V.G. Pragasam
for the Respondents 2 & 3.
The Judgment of the Court was delivered by
ARIJIT PASAYA T, J. Challenge in this writ petition under Article 32 of
D
E
F
the Constitution of India, 1950 (in short the 'Constitution') is to the order
passed by Government of Andhra Pradesh, represented by its Principal
Secretary whereby Gowru Venkata Reddy-respondent No.2 was granted G
remission of unexpired period of about seven years imprisonment. GOMs.
No.170 dated 11.8.2005 in this regard is challenged.
Factual scenario as per petitioners is as follows:
Petitioner No. I is the son of late Sh. Epuru Chinna Ramasubbaiah who H
88
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A was murdered along with another person on 19.10.1995. Petitioner No.2 claims
to be the son of one late Sh. Tirupati Reddy who was allegedly murdered by
respondent No.2 while he was on bail in the murder case of father of petitioner
No. I. In the case relating to the murder of late Sh. Epuru Chinna Ramasubbaiah
and one Ambi Reddy, respondent No.2 faced trial and ultimately the matter
came before this Court in Criminal Appeal Nos. 519-521 of 2003 which was
B disposed of by this Court by judgment dated 19.11.2003 and the conviction
of respondent No.2 was altered from one under Section 302 of the Indian
Penal Code, 1860 (in short the '!PC') to Section 304(1) read with Section I 09
!PC and custodial sentence of I 0 years' rigorous imprisonment was imposed.
Conviction relating to some other sentences was maintained. On 28.5.2003,
C the respondent No.3 wife of respondent No.2 submitted a representation for
grant of parole to respondent No.2 and on 18.10.2003 parole was granted for
a period of 15 days but the same was cancelled on 30.10.2003 by the State
Government in view of the report sent by Superintendent of Police, Kurnool
that on account ofrespondent No.2's release on parole there was a likelihood
of breach of peace and law and order if the respondent No.2 visits Nandikotkur
D Assembly Constituency. Respondent No.3 contested the election to the Andhra
Pradesh Assembly Election and on 12.5.2004 was elected as member of
Legislative Assembly. On 14.5.2004 she made a representation for grant of
parole to respondent No.2. Same was granted on 19.5.2004 and was extended
from time to time. On 18.7.2004 fourth extension for 15 days was granted. On
E I 0.10.2004 respondent No.3 made a representation to respondent No. I seeking
pardon to respondent No.2 by exercise of power under Article 161 of the
Constitution alleging that he was implicated in false cases due to political
rivalry. On 18.10.2004 during the pendency of the petition for pardon, one
month parole was granted. On 11.8.2005 the Governor of Andhra Pradesh
purportedly exercised power under Article 161 of the Constitution and granted
F remission of the unexpired sentence of respondent No.2. Director General and
Inspector General of Police (Correction Services) Andhra Pradesh were directed
to take action for release of respondent No.2 and in fact on 12.8.2005 the
Superintendent of Central Prison, Cherlapally, R.R. District directed release of
respondent No.2.
G
The writ petition has been filed inter alia alleging that the grant of
remission (described in the writ petition as grant of pardon) was illegal,
relevant materials were not placed before the Governor, and without application
of mind impugned order was passed. The recommendations made for grant of
remission were based on irrelevant and extraneous materials. The factual
H scenario has not been placed before the Governor in the proper perspective.
..
EPURUSUDHAKAR v. GOVT. OF A.P. [PASA YAT.J.]
89
The sole basis on which respondent No.3 asked for pardon was alleged A
implication in false cases due to political rivalry. In view of this Court's
judgment holding the respondent No.2 guilty, the said plea could not have
been even considered as a basis for grant of pardon. Since the grant of
pardon is based on consideration of irrelevant materials and non-consideration
of relevant materials the same is liable to be set aside.
Learned counsel for the respondent-State and respondent Nos.2 and 3
has strenuously contended that the petition is the outcome of a political
vendetta. All relevant materials have been taken into account by the Governor,
a high constitutional authority who passed the order granting remission. It
B
is submitted that the petitioner has confused between pardon and remission C
of sentence. It is a case where materials existed which warranted the grant of
remission and this Court should not interfere in the matter. Considering the
limited scope for judicial review the writ petition deserves to be dismissed.
Considering the fact that in large number of cases challenge is made to
the grant of pardon or remission, as the case may be, we had requested Mr. D
Soli J Sorabjee to act as Amicus Curiae. He has highlighted various aspects
relating to the grant of pardon and remission, as the case may be, and the
scope for judicial review in such matters. He has suggested that considering
the frequency with which pardons and/or the remission are being granted, in
the present political scenario of the country it would be appropriate for this
Court to lay down guidelines so that there is no scope for making a grievance
about the alleged misuse of power.
Learned counsel for the respondents on the other hand submitted that
though in Maru Ram v. Union of India & Ors., [I 98 I] I SCC I 07 this Court
had indicated certain recommendatory guidelines, the same did not find
acceptance in Kehar Singh and Anr. v. Union of India and Anr., (1989] I SCC
204. As a matter of fact in a later decision in Ashok Kumar® Golu v. Union
of India and Ors., (1991] 3 SCC 498 the alleged apparent inconsistencies in
the view was highlighted and a 3-Judge Bench held that laying down guidelines
would be inappropriate.
The relevant constitutional provisions regarding the grant of pardon,
remissions, suspension of sentence, etc. by the President of India and the
Governor of a State are as follows:
E
F
G
"Article 72. Power of President to grant pardons, etc. and to suspend,
remit or commute sentences in certain cases (I) The President shall H
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B
SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.
have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any
person convicted of any offence
(a) in all cases where the punishment or sentence is by a Court
Martial;
(b) in all cases where the punishment or sentence is for an offence
against any law relating to a matter to which the executive power
of the Un ion extends;
( c) in all cases where the sentence is a sentence of death.
C
(2) Nothing in sub-clause {a) of clause (I) shall affect the power
conferred by law on any officer of the Armed Forces of the Union to
suspend, remit or commute a sentence passed by a Court Martial.
D
E
F
G
H
(3) Nothing in sub-clause (c) of clause (I) shall affect the power to
suspend, remit or commute a sentence of death exercisable by the
Governor of a State under any law for the time being in force."
"Article I 61 Power of Governor to grant pardons, etc., and to suspend,
remit or commute sentences in certain cases-The Governor of a State
shall have the power to grant pardons, reprieves, respites or remissions
of punishment or to suspend, remit or commute the sentence of any
person convicted of any offence against any law relating to a matter
to which the executive power of the State extends."
The provision corresponding to Article 72 in the Government of India
Act I 935 (in short 'the Government Act') was Section 295 which reads as
follows:
"(I) Where any person has been sentenced to death in a Province, the
Governor-General in his discretion shall have all such powers of
suspension, remission or commutation of sentence as were vested in
the Governor-General in Council immediately before the commencement
of Part Ill of this Act, but save as aforesaid no authority in India
outside a Province shall have any power to suspend, remit or commute
the sentence of any person convicted in the Province.
Provided that nothing in this sub-section affects any powers of
any officer of His Majesty's forces to suspend, remit or commute a
sentence passed by a Court-Martial.
EPURU SUDHAKAR v. GOVT. OF A.P. [PASAYA T.J.]
91
(2) Nothing in this Act shall derogate from the right of His Majesty, A
or of the Governor-General, if any such right is delegated to him by
His Majesty, to grant pardons, reprieves, respites or remissions of
punishment."
There was no provision in the Government Act corresponding to Article
161 of the Constitution.
B
The above constitutional provisions were debated in the Constituent
Assembly on 29th December 1948 and 17th September 1949 [see Constituent
Assembly Debates, Vol.7, pages 1118-1120 and Vol. 10, page 389]. The grounds
and principles on which these powers should be exercised were neither
discussed nor debated [See Framing of India's Constitution: A Study, 2" C
Edition, Dr. Subhash C Kashyap, pages 367-371 , pages 397-399].
In addition to the above constitutional provisions the Code of Criminal
Procedure 1973 (in short 'Cr.P.C.') provides for power to suspend or remit
sentences and the power to commute sentence in Section 432 and Section 433 D
respectively.
Section 433A lays down restnct1ons on prov1s1ons of remission or
commutation in certain cases mentioned therein. Section 434 confers concurrent
power on the Central Government in case of death sentence.
Section 435 provides that the power of the State Government to remit
or commute a sentence where the sentence is in respect of certain offences
specified therein will be exercised by the State Government only after
consultation with the Central Government.
E
Sections 54 and 55 of IPC confer power on the appropriate Government F
to commute sentence of death or sentence of imprisonment for life as provided
therein.
Sections 432 and 433 Cr.P.C. read as follows:
"432. Power to suspend or remit sentences.( I) When any person has G
been sentenced to punishment for an offence, the appropriate
Government may, at any time, without conditions or upon any
conditions which the person sentenced accepts, suspend the execution
of his sentence or remit the whole or any part of the punishment to
which he has been sentenced.
H
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(2) Whenever an application is made to the appropriate Government
for the suspension or remission of a sentence, the appropriate
Government may require the presiding Judge of the Court before or
by which the conviction was had or confirmed, to state his opinion
as to whether the application should be granted or refused, together
with his reasons for such opinion and also to forward with the
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statement of such opinion a certified copy of the record of the trial
or of such record thereof as exists.
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(3) If any condition on which a sentence has been suspended or
remitted is, in the opinion of the appropriate Government, not fulfilled,
the appropriate Government may cancel the suspension or remission,
and thereupon the person in whose favour the sentence has been
suspended or remitted may. if at large, be arrested by any police
officer, without warrant and remanded to undergo the unexpired portion
of the sentence.
(4) The condition on which a sentence is suspended or remitted under
this section may be one to be fulfilled by the person in whose favour
the sentence is suspended or remitted, or one independent of his will.
(5) The appropriate Government may by general rules or special orders,
give directions as to the suspension of sentences and the conditions
on which petitions should be presented and dealt with:
Provided that in the case of any sentence (other than a sentence
of fine) passed on a male person above the age of eighteen years, no
such petition by the person sentenced or by other person on his
behalf shall be entertained, unless the person sentenced is in jail and,-
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(a) where such petition is made by the person sentenced, it is
presented through the officer in charge of the jail; or
(b) where such petition is made by any other person it contains a
declaration that the person sentenced is in jail.
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(6) The provisions of the above sub-sections shall also apply to any
order passed by a Criminal Court under any section of this Code or
of any other law which restricts the liberty of any person or imposes
any liability upon him or his property.
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(7) In this section and in section 433, the expression "appropriate
Government" means,-
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(a) in cases where the sentence is for an offence against, or the order A
referred to in sub-section ( 6) is passed under, any law relating to a
matter to which the executive power of the Union extends, the Central
Government;
(b) in other cases the Government of the State within which the
offender is sentenced or the said order is passed.
433. Power to com mule sen/ence. _The appropriate Government may,
without the consent of the person sentenced, commute-
(a) a sentence of death, for any other punishment provided by the
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Indian Penal Code (45of1860);
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(b) a sentence of imprisonment for life, for imprisonment for a term not
exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment for simple imprisonment for
any term to which that person might have been sentenced, or for fine; D
( d) a sentence of simple imprisonment for fine".
The philosophy underlying the pardon power is that "every civilized
country recognizes, and has therefore provided for, the pardoning power to
be exercised as an act of grace and humanity in proper cases. Without such E
a power of clemency, to be exercised by some department or functionary of
a government, a country would be most imperfect and deficient in its political
morality, and in that attribute of Deity whose judgments are always tempered
with mercy." [See 59 American Jurisprudence 2d, page 5].
The rationale of the pardon power has been felicitously enunciated by F
the celebrated Justice Holmes of the United States Supreme Court in the case
of Biddle v. Perovich in these words [71 L. Ed. 1161at1163):
"A pardon in our days is not a private act of grace from an individual
happening to possess power. It is a part of the constitutional scheme.
When granted, it is the determination of the ultimate authority that G
the public welfare will be better served by inflicting less than what
the judgment fixed. "
(emphasis added)
"Pardon and Parole" as per Corpus Juris Secundum (Vol.67-A) reads as H
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SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A follows: (Pages 16 and 17)
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"The pardoning power is founded on considerations of the public
good, and is to be exercised on the ground that the public welfare,
which is the legitimate object of all punishment, will be as well promoted
by a suspension as by an execution of the sentence. It may also be
used to the end that justice be done by correcting injustice, as where
after-discovered facts convince the official or board invested with the
power that there was no guilt or that other mistakes were made in the
operation or enforcement of the criminal law. Executive clemency also
exists to afford relief from undue harshness in the operation or
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enforcement of criminal law."
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Interests of society and convict
(I) Acts of leniency by pardon are administered by the executive
branch of the government in the interests of society and the discipline,
education, and reformation of the person convicted. III- People v.
Nowak, 35, N.E. 2d 63, 387 III, II.
(2) A pardon is granted on the theory that the convict has seen the
error of his ways, that society will gain nothing by his further
confinement and that he will conduct himself in the future as an
upright, law-abiding citizen.
Matter known to counsel
The pardoning power is set up to prevent injustice to a person
who has been convicted, especially when the facts of such injustice
were not properly produced in the trial court, but such power is not
a proper remedy on account of failure to use any matter which was
known to defendant or his counsel and was available at time of new
trial motion.
Showing that convection was on perjured testimony
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"Pardon and Parole" as stated in AMERICAN JURISPRUDENCE (Second
Edition) (Volume 59) reads as follows:
/. INTRODUCTORY
I. History of pardoning power.
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t
Every civilized country recognizes, and has therefore provided for, the A
pardoning power to be exercised as an act of grace and humanity in
proper cases. Without such a power of clemency, to be exercised by
some department or functionary of a Government, a country would be
most imperfect and deficient in its political morality, and in that attribute
of Deity whose judgments are always tempered with mercy. In England, B
this power has been exercised from time immemorial, and has always
been regarded as a necessary attribute of sovereignty. In the United
States, this power is extended to the President by the United States
J
Constitution, and in the various states and territories it is either
conferred by constitutional provision or organic act, or provided for
by statute, the power usually being conferred upon the governor or c
upon a board of which the governor is a member. In some instances,
however, the governor's power is so limited as to render an arbitrary
exercise impossible.
2. Validity of contract to procure pardon; criminal liability. While
the earlier cases uniformly held agreements to secure a pardon, parole, D
or commutation of sentence illegal irrespective of the services rendered
or contemplated, the more recent decisions take the view that such
contracts are valid or invalid according to the character of the services
contemplated. Although there is some conflict of opinion, contracts
entered into to obtain a pardon, parole, or commutation of sentence E
have generally been upheld where the services contemplated are not
other than the proper presentation of the case before the pardoning
power."
Reprieve
A reprieve, from the French word "reprendre," to take back, is the F
withdrawing of a sentence for an interval of time, whereby the execution
is suspended. It is merely the postponement of the execution of a
sentence for a definite time, or to a day certain. It does not and cannot
defeat the ultimate execution of the judgment of the court, but merely
delays it temporarily. Reprieves at common law are of three kinds:
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I. ex mandala reg is, from the mere pleasure of the Crown;
2. ex arbitrio judicis, the power to grant which belongs of common
right to every tribunal which is invested with authority to award
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execution; and
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3. ex necessitate legis, required by law to be granted under certain
circumstances, as when a woman convicted of a capital offence alleges
pregnancy of a quick child in delay of execution, or when a prisoner
has become insane between the time of sentence and the time fixed
for execution.
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In Sir William Wades' Administrative Law (Ninth Edition) the position
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relating to pardon is stated as follows:
"The royal prerogative
The prerogative powers of the Crown have traditionally been said to
confer discretion which no court can question; and there was long a
dearth of authority to the contrary. But it may be that this was
because the decided cases involved discretions which are, as has
been laid down in the House of Lords, inherently unsuitable for
judicial review, 'such as those relating to the making of treaties, the
defence of the realm, the prerogative of mercy, the grant of honours,
the dissolution of Parliament and the appointment of ministers as well
as others'. But at the same time the House of Lords held that the court
could review a ministers action (forbidding trade union membership
by certain civil servants) under authority delegated to him by
prerogative Order in Council, so that the principles of natural justice
would apply. Administrative action was held to be reviewable in
proceedings against the responsible minister without distinction as to
the origin of the power, whether statute or common law. In later cases
it was held that the dismissal of a civil servant involved 'a sufficient
public law element' to be subject to Judicial review and that an unfair
compensation award by the civil service appeal board should be
quashed. So now it may be said that the royal prerogative does not
per se confer unreviewable discretion, but that many of the powers
contained in it will be of a kind with which the courts will not concern
themselves. It may be the prerogative acts of the Crown itself, though
taken on the advice of ministers are immune from review, whereas the
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action of ministers, though authorised by delegation of prerogative
power, is reviewable. But this is an artificial distinction, and if the case
were strong enough even an Order in Council might prove to be
reviewable in a declaratory judgment.
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These propositions are founded on the wide definition of
prerogative which has been criticized earlier. The making of treaties,
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for example, has no effect on the law of this country, so that there is A
no exercise of power which can concern the courts. It might be called
prerogative without power, while the employment of civil servants
might be called power without prerogative. A case where there may
be neither prerogative nor power is the grant and refusal of passports,
which has been claimed to be wholly within the prerogative and
discretion of the Crown. A passport is merely an administrative device, B
the grant or cancellation of which probably involves no direct legal
consequences, since there appears to be no justification for supposing
that, in law as opposed to administrative practice, a Citizen's right to
leave or enter the country is dependent upon the possession of a
passport. The arbitrary power claimed by the Crown has now been C
made subject to judicial review along with various other non-legal
powers discussed later. Other countries were ahead of Britain in
protecting this necessary civil right.
At least it is now judicially recognised that prerogative power is
as capable of abuse as is any other power, and that the law can D
sometimes find means of controlling it. The prerogative has many
times been restricted both by judicial decision and by statute. It is for
the court to determine the legal limits of the prerogative, and they may
include the same requirement of reasonable and proper exercise as
applies to statutory powers though with this difference, that it cannot
be based upon the presumed intention of Parliament. In one unusual
case, where a Parliamentary basis could be found because action
taken by a minister under a treaty was held to be impliedly prohibited
by a statute," Lord Denning MR discussed the nature of the prerogative
and said:
Seeing that the prerogative is a discretionary power to be
exercised for the public good, it follows that its exercise can be
examined by the courts just as any other discretionary power
which is vested in the executive.
Then after citing cases of abuse of statutory power he concluded:
Likewise it seems to me that when discretionary powers are
entrusted to the executive by the prerogative-in pursuance of
the treaty-making power the courts can examine the exercise of
them so as to see that they are not used improperly or mistakenly.
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Although this last remark was said in the House of Lords to be 'far H
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too wide', in today's atmosphere it seems clear that the court would
entertain a complaint that, for example, a royal pardon had been
obtained by fraud or granted by mistake or for improper reasons. The
High Court has gone so far as to review a decision of the Home
Secretary not to recommend a posthumous free pardon for a youth
hanged for murder forty years previously, on the ground that he
considered only an unconditional pardon and failed to take account
of other possibilities. Although the court made no order or declaration
and merely invited the Home Secretary to look at the matter again,
it clearly took a long step towards judicial review of the prerogative
of mercy.