2006 Supreme(SC) 940

2006(7) Supreme 539
SUPREME COURT OF INDIA
Arijit Pasayat and S.H. Kapadia, JJ.
Epuru Sudhakar & Anr.—Petitioners
versus
Govt. of A.P. & Ors.—Respondents
Writ Petition (Crl.) Nos. 284-285 of 2005
Decided on 11-10-2006
Counsel for the Parties :
For the Petitioners : Jaideep Gupta, Soli J. Sorabjee (A.C.), Mukul Rohtagi, Sr. Advocates, Veera Reddy, C.S.N. Mohan Rao, P.H. Parekh (A.C.), Sumit Goelm, Ms. Rukmani Bobde, Ms. Gargi Hazarika and A. Srinivasan, Advocates.
For the Respondents : Ranjit Kumar, Sr. Advocate, Mrs. D. Bharathi Reddy, P. Vinay Kumar and Ms. Sneha Bhaskaran, Advocates.
For the Respondents 2 & 3 : T.R. Andhyarujina, Altaf Ahmad, Sr. Advocates. G.N. Reddy, Asis and V.G. Pragasam, Advocates.

IMPORTANT POINTS
1. Judicial review of the order of the President or the Governor under Article 72 or Article 161 of the Constitution of India, as the case may be, is available when the order has been passed without application of mind or on extraneous or wholly irrelevant considerations or when relevant materials have been kept out of consideration.
2. The power of execute 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.

Headnote:(i) Constitution of India—Articles 72 and 161—Power to grant pardon and to suspend, remit or commute sentences—Judicial review—Scope for making a grievance about misuse of power—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—Power of pardon cannot be exercised for political consideration—Consideration of religion, caste, colour or political loyalty are totally irrelevant and fraught with discrimination—Criminal Procedure Code, 1973—Sections 432, 433—Indian Penal Code, 1860—Sections 54 and 55.

       As per Arijit Pasayat, J.

       Held : 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 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."(Para 16)

       The position, therefore, is undeniable that 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 mala fide;

       (c)that the order has been passed on extraneous or wholly irrelevant considerations;

       (d)that relevant materials have been kept out of consideration;

       (e)that the order suffers from arbitrariness (Para 33)

       As per S.H. Kapadia, J. (Concurring Judgment)

       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.(Para 60)

       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.(Para 62)

       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.(Para 63)

       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 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.(Para 64)

       (ii) Constitution of India—Articles 72 and 161—Pardon and Remission—Requirement of indicating reasons in the order granting pardon/remission—Absence of any obligation to convey reasons does not mean that there should not be legitimate or relevant reasons for passing the order—Since there is a power of judicial review, the same can be rendered to be an exercise in futility in absence of reasons.

       As per Arijit Pasayat, J.

       Held : In Kehar Singhs case (supra) this Court held that:

       "There is no question involved in the case of asking for reasons for the Presidents Order".

       The same obviously means that the affected party need not be given the reasons. The question whether reasons can or cannot be disclosed to the Court when the same is challenged was not the subject matter of consideration. In any event, the absence of any obligation to convey the reasons does not mean that there should not be legitimate or relevant reasons for passing the order. (Paras 35 and 36)

       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. (Para 41)

       As per S.H. Kapadia, J. (Concurring Judgment)

       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.(Para 65)

       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.(Para 66)

       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.(Para 67)

       (iii) Constitution of India—Articles 72 and 161—Pardon and Remission—Power to withdraw the order of granting pardon/remission—Scope and ambit of Sections 14 and 21 of the General Clauses Act—If it comes to the knowledge of the Government that the pardon has been obtained on basis of manifest mistake or patent misrepresentation or fraud, the same can be rescinded or cancelled—Criminal Procedure Code, 1973—Sections 432, 433—General Clauses Act—Sections 14 and 21.(Para 48)

       (iv) Indian Penal Code, 1860—Sections 302, 304–I r/ws 109—Grant of pardon by Governor—Writ petition challenging order passed by Government of Andhra Pradesh—Murder trial—Supreme Court altered conviction of respondent No. 2 from one u/s 302 IPC to Section 304(1) rw/s 109 IPC—Sentence of custodial sentence of 10 years RI—On request by wife of accused, respondent No. 2 was granted remission of unexpired period of about seven years imprisonment—Writ petition filed by son of deceased alleging that grant of remission was illegal, relevant materials were not placed before the Governor—Sole basis on which the accused asked for pardon was alleged implication in false cases due to political rivalry—Wrong statements made before Governor—Irrelevant and extraneous materials entered into the decision making process, thereby vitiating it—Order granting remission held unsustainable, therefore, set aside.

       Held : The various materials were placed before the Governor when the request for grant of pardon/remission was processed at various levels. The views of the District level officials were obtained. Since they formed the basis of impugned order, it is relevant to take note of some interesting features. The three District level officials were Superintendent of Police, the District Collector, Kunoor and the District Probation Officer. Apart from that, the views of the Superintendent of jail, Central Prison, Cherlapally were obtained. The Collectors report refers to the report given by the Superintendent of Police and reproduces the same in the report contained in letter dated 9.12.2004. He also refers the letter dated 8.12.2004 of the Revenue Divisional Officer who according to him had indicated no objection to release of respondent No.2 on premature basis as his conduct and character was good and he lead ordinary life during the period of his escort parole from 19.5.2004 to 7.8.2004 and the free parole from 20.10.2004 to 6.11.2004. Only on that basis the District Collector recommended premature release. According to learned counsel for the State this was sufficient as the Collector had to act on some material and he acted on the reports of the Superintendent of Police and the Revenue Divisional officer. The plea is clearly unacceptable. The Collector does not appear to have made any independent enquiry on his own. The report of District Probation Officer is very interesting. In his report he has stated that if he (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 in Bramhanakotkur village. Following portion of his report shows as to how extraneous materials which had no relevance formed the foundation of his report.(Paras 52 and 53)

       Apart from apparently wrong statement made that respondent No.2 was maintaining cordial relationship with the family members of the deceased, he has highlighted that he was a "good Congress Worker". Further there is an inference that he was not involved in the murder was falsely implicated and false witnesses were produced. This inference on the fact of this Courts judgment is utterly fallacious. The question of his being a "good Congress Worker" has no relevance the objects sought to be achieved i.e. consideration of the 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. The report of the Superintendent of Police is equally interesting. He has stated that there will be no reaction in Brahmana Kotkur village and Nandikotkur town if the prisoner releases on prematurely. The report is dated 6.12.2004. Before the elections, the same officer had reported that on account of respondent No.2s 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. (Paras 54 and 55)

       It appears that in the petition filed by respondent No.3 there is no mention about pendency of a Criminal Case No. 411 of 2000. Learned counsel for the respondent No.1-State submitted that though this fact was not mentioned by the 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. When the principles of law as noted above are considered in the factual background it is clear that the irrelevant and extraneous materials entered into the decision making process, thereby vitiating it. The order granting remission which is impugned in the petition is clearly unsustainable and is set aside.(Paras 56 to 58)