MANU/SC/4440/2006

Equivalent Citation: 2006(3)AC R3223(SC ), AIR2006SC 3385, JT2006(9)SC 72, (2006)4MLJ1555(SC ), 2006(4)PLJR144,
2006(4)RC R(C riminal)616, 2006(10)SC ALE98, (2006)8SC C 161

IN THE SUPREME COURT OF INDIA

Writ Petition (Crl.) Nos. 284-285 of 2005
Decided On: 11.10.2006
Appellants: Epuru Sudhakar and Ors.
Vs.
Respondent: Govt. of A.P. and Ors.
Hon'ble Judges/Coram:
Dr. Arijit Pasayat and S.H. Kapadia, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Jaideep Gupta, Soli J. Sorabjee (A.C.) and Mukul
Rohtagi, Sr. Advs., Veera Reddy, C.S.N. Mohan Rao, P.H. Parekh (A.C.), Sumit Goel,
Rukmani Bobde, Gargi Hazarika and A. Srinivasan, Advs
For Respondents/Defendant: T.R. Andhyarujina and Altaf Ahmad, Sr. Advs., G.N.
Reddy, Asis and V.G. Pragasam, Advs. for the Respondent Nos. 2 and 3 and Ranjit
Kumar, Sr. Adv., D. Bharathi Reddy, P. Vinay Kumar and Sneha Bhaskaran, Advs.
Case Note:
(1)Constitution of India - Articles 72, 161, 32 and 226--General Clauses
Act, 1897--Section 21--Sentence -- Remission -- Pardon--Scope of judicial
review delineated--Reasons for granting remission/ pardon to be disclosed-
-When pardon obtained on basis of manifest mistake or patent
misrepresentation or fraud--It can be rescinded or cancelled.
Judicial review of the order of the President or the Governor under Article
72 or Article 161, as the case may be, granting remission of sentence or
pardon to a convict 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.
(2) Constitution of India--Articles 32 and 161--Sentence--Remission--
Validity--Conviction of respondent No. 2 G. Venkata Reddy altered by
Supreme Court from one under Section 302, I.P.C. to Section 304 (1) read
with Section 109, I.P.C.--And custodial sentence of 10 years imposed--
Remission of unexpired period of about 7 years imprisonment granted by
Governor of A. P. under Article 161--Respondent No. 3 wife of respondent
No. 2 elected as member of A. P. Legislative Assembly on 12.5.2004 -- On
her representation that her husband was implicated in false cases due to

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political rivalry--Governor of A. P. granted remission of unexpired sentence
of respondent No. 2 on 11.8.2005 under Article 161--Whether justified?--
Held, "no"--Views of three District Level officials, namely, S. P., District
Collector and District Probation Officer formed basis of impugned order--But
Collector made no independent enquiry--And acted on reports of S.P. and
R.D.O.--District Probation Officer reported that "in this murder case, convict
is not involved but due to political reasons his name was implicated"--That
"later they realised their mistake and family members of deceased are
maintaining cordial relations"--That convict is "a good Congress worker"--
Inference in report that he was falsely implicated--Is utterly fallacious in
face of Supreme Court's judgment--Question of his being "good Congress
worker"--Has no relevance--S.P. made favourable report due to change in
ruling pattern--In petition filed by respondent No. 3, pendency of criminal
case not mentioned--Irrelevant and erroneous materials entered into
decision-making process--Thereby vitiating it--Order granting remission
clearly unsustainable--And set aside.
JUDGMENT
Arijit Pasayat, J.
1. Challenge in this writ petition under Article 32 of 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 remission of unexpired period of about seven years imprisonment.
GOMs. No. 170 dated 11.8.2005 in this regard is challenged.
2. Factual scenario as per petitioners is as follows:
Petitioner No. 1 is the son of late Sh. Epuru Chinna Ramasubhai who 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. 1. In the case relating to the murder of late Sh. Epuru Chinna
Ramasubhai 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 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 'IPC') to Section 304(1) read with
Section 109 IPC and custodial sentence of 10 years' rigorous imprisonment
was imposed. Conviction relating to some other sentences was maintained.
On 28.5.2003, 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 of respondent 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 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 10.10.2004
respondent No. 3 made a representation to respondent No. 1 seeking pardon
to respondent No. 2 by exercise of power under Article 161 of the

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 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 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.
3 . 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 scenario has not been placed before the
Governor in the proper perspective. 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 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.
4 . 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 is submitted that
the petitioner has confused between pardon and remission 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. 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 and Ors. MANU/SC/0159/1980 : 1980CriL J1440 this Court had
indicated certain recommendatory guidelines, the same did not find acceptance in
Kehar Singh and Anr. v. Union of India and Anr. MANU/SC/0240/1988 :
1989CriL J941 . As a matter of fact in a later decision in Ashok Kumar @ Golu v.
Union of India and Ors. MANU/SC/0406/1991 : 1991CriL J2483 the alleged apparent
inconsistencies in the view was highlighted and a 3-Judge Bench held that laying
down guidelines would be inappropriate.
5 . 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:
Article 72. Power of President to grant pardons, etc. and to suspend,
remit or commute sentences in certain cases -- (1) The President shall
have the power to grant pardons, reprieves, respites or remissions of

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 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 Union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in Sub-clause (a) of Clause (1) 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.
(3) Nothing in Sub-clause (c) of Clause (1) 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.
A rticle 161 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 1935 (in
short 'the Government Act') was Section 295 which reads as follows:
(1) 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 III 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.
(2) Nothing in this Act shall derogate from the right of His Majesty, 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.
6. 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" 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

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respectively.
Section 433A lays down restrictions on provisions 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.
Sections 54 and 55 of IPC confer power on the appropriate Government to commute
sentence of death or sentence of imprisonment for life as provided therein.
7. Sections 432 and 433 Cr.P.C. read as follows:
432. Power to suspend or remit sentences.- ( I) When any person has
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.
(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 statement of such opinion a certified copy of the
record of the trial or of such record thereof as exists.
(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,-
(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.
(7) In this section and in section 433, the expression "appropriate
Government" means,-
(a) in cases where the sentence is for an offence against, or the
order 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 commute sentence.--The appropriate Government may,
without the consent of the person sentenced, commute-
(a) a sentence of death, for any other punishment provided by the
Indian Penal Code (45 of l860);
(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) 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 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].
8 . The rationale of the pardon power has been felicitously enunciated by the
celebrated Justice Holmes of the United States Supreme Court in the case of Biddle v.
Perovich in these words 71 L. Ed. 1161 at 1163:
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 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 follows:
(Pages 16 and 17)
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

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 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 enforcement of criminal law.
Interests of society and convict
(1) 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
9 . Pardon and Parole" as stated in AMERICAN JURISPRUDENCE (Second Edition)
(Volume 59) reads as follows:
I. INTRODUCTORY
1. History of pardoning power.
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. In England, 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 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 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, 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 have generally been upheld where the services

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 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
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:
1. exmandato regis, 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
execution; and
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.
10. In Sir William Wades' Administrative Law (Ninth Edition) the position 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 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.
These propositions are founded on the wide definition of prerogative which

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has been criticized earlier. The making of treaties, for example, has no effect
on the law of this country, so that there is 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, 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 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 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.
Although this last remark was said in the House of Lords to be 'far 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. For example it was clear that the Home Secretary had
refused to pardon someone solely on the ground of their sex, race or
religion, the courts would be expected to interfere and our judgment would
be entitled to do so.
In New Zealand the Court of Appeal has held that the prerogative power of

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 pardon is not reviewable 'at any rate at present', but that the position might
change justice so required; that the prerogative character of the power did
not exempt it from review; but that the existing legal and administrative
safeguards were adequate so that an extension of judicial review was
unnecessary.
A further question is whether the law should concern itself with the Crown's
exercise of the ordinary powers and liberties which all persons possess, as in
the making of contracts and the conveyance of land. It has hitherto been
assumed that in this area the Crown has the same free discretion as has any
other person. But where such powers are exercised for governmental
purposes it is arguable that the courts should be prepared to intervene, as a
matter of public ethics, as a safeguard against abuse. They do not allow local
authorities to act arbitrarily or vindictively in evicting tenants, letting sports
grounds or placing advertisements, for example. Those are technically
statutory powers (since all local authorities are statutory), but they
correspond to ordinary powers and liberties. If, as the House of Lords holds,
the source of power is irrelevant, it would not seem impossible for judicial
review to be extended to this 'third source' of public power which is neither
statutory nor prerogative but is a remnant from the days of personal
government. But the 'grotesquely undemocratic idea that public authorities
have a private capacity is deeply embedded in our legal culture', and such
judicial authority as there is, is not encouraging.
We shall deal with the extent of power for judicial review as highlighted by learned
Counsel for the parties and learned Amicus Curie before we deal with the factual
scenario.
11. 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. In Maru Ram's case (supra) it
was held that all public power, including constitutional power, shall never be
exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal
execution are guarantors of the valid play of power.
12. It is noteworthy that in Kehar Singh's case (supra) the contention that the power
of pardon can be exercised for political consideration was unequivocally rejected. In
Maru Ram's case (supra) it was held that consideration of religion, caste, colour or
political loyalty are totally irrelevant and fraught with discrimination. In Kehar
Singh's case (supra) it was held that the order of the President cannot be subjected
to judicial review on its merits except within the strict limitations delineated in Maru
Ram's case (supra). The function of determining whether the act of a constitutional or
statutory functionary falls within the constitutional or legislative conferment of
power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude
of the power is a matter for the court. In Kehar Singh's case (supra), placing reliance
on the doctrine of the division (separation) of powers it was pleaded, that it was not
open to the judiciary to scrutinize the exercise of the "mercy" power. In dealing with
this submission this Court held that the question as to the area of the President's
power under Article 72 falls squarely within the judicial domain and can be examined
by the court by way of judicial review. As regards the considerations to be applied to
a petition for pardon/remission in Kehar Singh's case (supra) this Court observed as
follows:
As regards the considerations to be applied by the President to the petition,
we need say nothing more as the law in this behalf has already been laid

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 down by this Court in Maru Ram.
1 3 . In the case of Swaran Singh v. State of U.P. MANU/SC/0196/1998 :
[1998]2SCR206 after referring to the judgments in the cases of Maru Ram's case
(supra) and Kehar Singh's case (supra) this Court held as follows:
We cannot accept the rigid contention of the learned Counsel for the third
respondent that this Court has no power to touch the order passed by the
Governor under Article 161 of the Constitution. If such power was exercised
arbitrarily, mala fide or in absolute disregard of the finer canons of the
constitutionalism, the by-product order cannot get the approval of law and in
such cases, the judicial hand must be stretched to it.
The factual scenario in Swaran Singh's case (supra) needs to be noted. One Doodh
Nath was found guilty of murdering one Joginder Singh and was convicted to
imprisonment for life. His appeals to the High Court and Special Leave Petition to this
Court were unsuccessful. However, within a period of less than 2 years the Governor
of Uttar Pradesh granted remission of the remaining long period of his life sentence.
This Court quashed the said order of the Governor on the ground that when the
Governor was not posted with material facts, the Governor was apparently deprived
of the opportunity to exercise the powers in a fair and just manner. Conversely, the
impugned order, it was observed "fringes on arbitrariness".
The Court held that if the pardon power "was exercise arbitrarily, mala fide or in
absolute disregard of the finer canons of the constitutionalism, the by-product order
cannot get the approval of law and in such cases, the judicial hand must be stretched
to it". The Court further observed that when the order of the Governor impugned in
these proceedings is subject to judicial review within the strict parameters laid down
i n Maru Ram's case (supra) and reiterated in Kehar Singh's case (supra): "we feel
that the Governor shall reconsider the petition of Doodh Nath in the light of those
materials which he had no occasion to know earlier.", and left it open to the
Governor of Uttar Pradesh to pass a fresh order in the light of the observations made
by this Court.
14. In the case of Satpal and Anr. v. State of Haryana and Ors. MANU/SC/0318/2000
: 2000CriLJ2297 ,
this Court observed that the power of granting pardon under Article 161 is very wide
and does not contain any limitation as to the time at which and the occasion on
which and the circumstances in which the said powers could be exercised.
Thereafter the Court held as follows:
...the said power being a constitutional power conferred upon the Governor
by the Constitution is amenable to judicial review on certain limited grounds.
The Court, therefore, would be justified in interfering with an order passed
by the Governor in exercise of power under Article 161 of the Constitution if
the Governor is found to have exercised the power himself without being
advised by the Government or if the Governor transgresses the jurisdiction in
exercising the same or it is established that the Governor has passed the
order without application of mind or the order in question is mala fide one or
the Governor has passed the order on some extraneous consideration.
The principles of judicial review on the pardon power have been re-stated in the case
of Bikas Chatterjee v. Union of lndia : (2004)7SCC634 .

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1 5 . I n Mansukhlal Vithaldas Chauhan v. State of Gujarat MANU/SC/1303/1997 :
1997CriLJ4059 it was inter-alia held as follows:
2 5 . This principle was reiterated in Tata Cellular v. Union of India
MANU/SC/0002/1996 : AIR1996SC11 in which it was, inter alia, laid down
that the Court does not sit as a court of appeal but merely reviews the
manner in which the decision was made particularly as the Court does not
have the expertise to correct the administrative decision. If a review of the
administrative decision is permitted, it will be substituting its own decision
which itself may be fallible. The Court pointed out that the duty of the Court
is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?;
2. committed an error of law;
3. committed a breach of the rules of natural justice;
4 . reached a decision which no reasonable tribunal would have
reached; or
5. abused its powers.
26. In this case, Lord Denning was quoted as saying: (SCC pp. 681-82, para
83)
Parliament often entrusts the decision of a matter to a specified
person or body, without providing for any appeal. It may be a
judicial decision, or a quasi-judicial decision, or an administrative
decision. Sometimes Parliament says its decision is to be final. At
other times it says nothing about it. In all these cases the courts will
not themselves take the place of the body to whom Parliament has
entrusted the decision. The courts will not themselves embark on a
rehearing of the matter. See Healey v. Minister of Health 1955 (1)
QB 221.
27. Lord Denning further observed as under: (p. 682)
If the decision-making body is influenced by considerations which
ought not to influence it; or fails to take into account matters which
it ought to take into account, the court will interfere. See Padfield v.
Minister of Agriculture, Fisheries and Food 1968 AC 997.
2 8 . In Sterling Computers Ltd. v. M&N Publications Ltd.
MANU/SC/0439/1993 : AIR1996SC51
it was pointed out that while exercising the power of judicial review, the
Court is concerned primarily as to whether there has been any infirmity in
the decision-making process? In this case, the following passage from
Professor Wade's Administrative Law was relied upon: (SCC p. 457, para 17)
The doctrine that powers must be exercised reasonably has to be
reconciled with the no less important doctrine that the court must
not usurp the discretion of the public authority which Parliament
appointed to take the decision. Within the bounds of legal
reasonableness is the area in which the deciding authority has
genuinely free discretion. If it passes those bounds, it acts ultra

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 vires. The court must therefore resist the temptation to draw the
bounds too tightly, merely according to its own opinion. It must
strive to apply an objective standard which leaves to the deciding
authority the full range of choices which legislature is presumed to
have intended.
29. It may be pointed out that this principle was also applied by Professor Wade to
quasi- judicial bodies and their decisions. Relying upon decision in R. v. Justices of
London 1895 1 QB 214. Professor Wade laid down the principle that where a public
authority was given power to determine matter, mandamus would not lie to compel it
to reach some particular decision.
30. A Division Bench of this Court comprising Kuldip Singh and B.P. Jeevan Reddy,
JJ. in U.P. Financial Corporation v. Gem Cap (India) (P) Ltd. MANU/SC/0481/1993 :
[1993]2SCR149 observed as under: (SCC pp. 306-07, para 11)
11. The obligation to act fairly on the part of the administrative authorities
was evolved to ensure the rule of law and to prevent failure of justice. This
doctrine is complementary to the principles of natural justice which the
quasi- judicial authorities are bound to observe. It is true that the distinction
between a quasi- judicial and the administrative action has become thin, as
pointed out by this Court as far back as 1970 in A.K. Kraipak v. Union of
India MANU/SC/0427/1969 : [1970]1SCR457 . Even so the extent of judicial
scrutiny/judicial review in the case of administrative action cannot be larger
than in the case of quasi- judicial action. If the High Court cannot sit as an
appellate authority over the decisions and orders of quasi-judicial authorities
it follows equally that it cannot do so in the case of administrative
authorities. In the matter of administrative action, it is well known, more
than one choice is available to the administrative authorities; they have a
certain amount of discretion available to them. They have 'a right to choose
between more than one possible course of action upon which there is room
for reasonable people to hold differing opinions as to which is to be
preferred'. (Lord Diplock in Secy. of State for Education and Science v.
Tameside Metropolitan Borough Council 1977 AC 1014 The Court cannot
substitute its judgment for the judgment of administrative authorities in such
cases. Only when the action of the administrative authority is so unfair or
unreasonable that no reasonable person would have taken that action, can
the Court intervene.
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
Two important aspects were also highlighted by learned Amicus Curiae; one relating
to the desirability of indicating reasons in the order granting pardon/remission while

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the other was an equally more important question relating to power to withdraw the
order of granting pardon/remission, if subsequently, materials are placed to show
that certain relevant materials were not considered or certain materials of extensive
value were kept out of consideration. According to learned Amicus Curiae, reasons
are to be indicated, in the absence of which the exercise of judicial review will be
affected.
17. So far as desirability to indicate guidelines is concerned in Ashok Kumar's case
(supra) it was held as follows:
-In Kehar Singh's case (supra) on the question of laying down guidelines for
the exercise of power under Article 72 of the constitution this Court observed
in paragraph 16 as under: (SCC pp. 217-18, para 16)
It seems to us that there is sufficient indication in the terms of
Article 72 and in the history of the power enshrined in that provision
as well as existing case law, and specific guidelines need not be
spelled out. Indeed, it may not be possible to lay down any precise,
clearly defined and sufficiently channelised guidelines, for we must
remember that the power under Article 72 is of the widest amplitude,
can contemplate a myriad kinds and categories of cases with facts
and situations varying from case to case, in which the merits and
reasons of State may be profoundly assist by prevailing occasion and
passing time. And it is of great significance that the function itself
enjoys high status in the constitutional scheme.
These observations do indicate that the Constitution Bench which decided Kehar
Singh's case (supra) was of the view that the language of Article 72 itself provided
sufficient guidelines for the exercise of power and having regard to its wide
amplitude and the status of the function to be discharged thereunder, it was perhaps
unnecessary to spell out specific guidelines since such guidelines may not be able to
conceive of all myriads kinds and categories of cases which may come up for the
exercise of such power. No doubt in Maru Ram's case (supra) the Constitution Bench
did recommend the framing of guidelines for the exercise of power under Articles
72/161 of the Constitution. But that was a mere recommendation and not ratio
decidendi having a binding effect on the Constitution Bench which decided Kehar
Singh's case (supra). Therefore, the observation made by the Constitution Bench in
Kehar Singh's case (supra) does not upturn any ratio laid down in Maru Ram's
case(supra). Nor has the Bench in Kehar Singh's case (supra) said any thing with
regard to using the provisions of extant Remission Rules as guidelines for the
exercise of the clemency powers.
In Kehar Singh's 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.
1 8 . I n S.R. Bommai and Ors. v. Union of India and Ors. MANU/SC/0444/1994 :
[1994]2SCR644

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in the context of exercise of power under Article 356 of the Constitution it was
observed at page 109, para 87 as follows:
When the Proclamation is challenged by making out a prima facie case with
regard to its invalidity, the burden would be on the Union Government to
satisfy that there exists material which showed that the Government could
not be carried on in accordance with the provision of the Constitution. Since
such material would be exclusively within the knowledge of the Union
Government, in view of the provision of Section 106 of the Evidence Act, the
burden on proving the existence of such material would be on the Union
Government.
1 9 . The position if the Government chooses not to disclose the reasons or the
material for the impugned action was stated in the words of Lord Upjohn in the
landmark decision in Padfield and Ors. v. Minister of Agriculture, Fisheries and Food
and Ors. 1968 (1) All E.R. 694:
...if he does not give any reason for his decision it may be, if circumstances
warrant it, that a court may be at liberty to come to the conclusion that he
had no good reason for reaching that conclusion....
The same approach was adopted by Justice Rustam S. Sidhwa of the Lahore High
Court in Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah 725 where at
p.775 para 13 the learned Judge observed as follows:
I have no doubt that both the Governments are not compelled to disclose all
the reasons they may have when dissolving the Assemblies under Articles
58(2)(b) and 112(2)(b). If they do not choose to disclose all the material,
but only some, it is their pigeon, for the case will be decided on a judicial
scrutiny of the limited material placed before the Court and if it happens to
be totally irrelevant or extraneous, they must suffer.
Justice Sidhwa's aforesaid observations have been referred to and approved in S.R.
Bommai's case (supra). 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.
20. The logic applied by this Court in Bommai's case (supra) in the context of Article
74(2) is also relevant. It was observed in paras 153 and 434 as follows:
-Article 74(2) is not a bar against the scrutiny of the material on the basis of
which the President had arrived at his satisfaction.
- Article 74(2) merely bars an enquiry into the question whether any and if
so, what advice was tendered by the Ministers to the President. It does not
bar the court from calling upon the Union Council of Ministers (Union of
India) to disclose to the court the material upon which the President had
formed the requisite satisfaction. The material on the basis of which advice
was tendered does not become part of the advice. Even if the material is
looked into by or shown to the President, it does not partake the character of
advice.
So far as the second aspect relating to withdrawal is concerned, it is submitted that
though there is no specific reference in this regard in either Article 72 or Article 161
of the Constitution yet by application of the provisions of the General Clauses Act,
1897 (in short the 'General Clauses Act') the same would be permissible. It is also

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highlighted that similar provisions are specifically provided in Sections 432 and 433
Cr.P.C. Merely because Article 72 and Article 161 of the Constitution have not been so
provided specifically that would not mean that such power was not intended to be
exercised.
21. 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 bye-laws. They read as follows:
14. Powers conferred to be exercisable from time to time- (1) Where, by any
Central Act or Regulation made after the commencement of this Act, any
power is conferred then unless a different intention appears that power may
be exercised from time to time as occasion requires.
(2) This section applies also to all Central Acts and Regulations made on or
after the fourteenth day of January, 1887.
2 1 . Power to issue, to include power to add to, amend, vary or rescind
notifications, orders, rules or bye-laws- Where, by any Central Act or
Regulation, a power to issue notifications orders, rules or bye-laws is
conferred, then that power includes a power, exercisable in the like manner
and subject to the like sanction and conditions (if any), to add to, amend,
vary or rescind any notifications, orders, rules or bye- laws so issued.
The scope and ambit of Sections 14 and 21 of the General Clauses Act have been
analysed by this Court in Sampat Prakash v. State of J & K MANU/SC/0320/1968 :
[1969]2SCR365 . It was inter alia held in para 11 as follows:
11 - This provision is clearly a rule of interpretation which has been made
applicable to the Constitution in the same manner as it applied to any Central
Act or Regulation. On the face of it, the submission that Section 21 cannot be
applied to the interpretation of the Constitution will lead to anomalies which
can only be avoided by holding that the rule laid down in this section is fully
applicable to all provisions of the Constitution.
Section 432(3) of Cr.P.C. reads as follows:
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.
22. The position in U.S.A. is summed up in Volume 67A Corpus Juris Secundum,
p.21 para 16 as follows:
There is authority for the view that a pardon may be held void where it
appears from the pardon that the pardoning power was misinformed; but
there is also authority for the view that intentional falsehood or suppression
of truth is necessary, and that misinformation given in good faith and in the
belief in its truth is insufficient to avoid a pardon--.A pardon procured by
false and fraudulent representations or by intentional suppression of the
truth is void, even though the person pardoned had no part in perpetrating
the fraud.

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Inevitable conclusion, therefore, is that 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.
23. In R. v. Secretary of State for the Home Department, ex parte Bentley 1993 (4)
All E.R. 442 it was held:
(1) The court had jurisdiction to review the exercise of the royal prerogative
of mercy by the Home Secretary in accord with accepted public law principles
since the exercise of the prerogative was an important feature of the criminal
justice system and a decision by the Home Secretary which was infected with
legal errors ought not to be immune from legal challenge merely because it
involved an element of policy or was made under the prerogative.
(2) The Home Secretary's decision not to recommend a posthumous pardon
for the applicant's brother was flawed because, in considering whether to
grant a posthumous pardon, he had failed to recognise the fact that the
prerogative of mercy was capable of being exercised in many different
circumstances and over a wide range and had failed to consider the form of
pardon which might be appropriate. Furthermore, there was no objection in
principle to the grant of a posthumous conditional pardon where a death
sentence had already been carried out, as the grant of such a pardon
represented recognition by the state that a mistake had been made and that a
reprieve should have been granted. Since the Home Secretary's failure to
consider the grant of a posthumous conditional pardon when the previous
Home Secretary's decision not to grant a reprieve had been clearly wrong
amounted to an error of law, the court, while making no order on the
application, would invite the Home Secretary to reconsider his decision.
At page 452 of the Reports it was held as follows:
The Court of Appeal (Cooke P, Gauk and McKay JJ) dismissed the appeal but
in doing so it said [1992] 3 NZLR 672:
The prerogative of mercy is a prerogative power in the strictest
sense of that term, for it is peculiar to the Crown and its exercise
directly affects the rights of persons. On the other hand it would be
inconsistent with the contemporary approach to say that, merely
because it is a pure and strict prerogative power, its exercise or non-
exercise must be immune from curial challenge. There is nothing
heterodox in asserting, as counsel for the appellant do, that the rule
of law requires that challenge shall be permitted in so far as issues
arise of a kind with which the Courts are competent to deal.... In the
end the issue must turn on weighing the competing considerations, a
number of which we have stated. Probably it cannot be said that any
one answer is necessarily right; it is more a matter of a value or
conceptual judgment as to the place in the law and the effectiveness
or otherwise of the prerogative of mercy at the present day. In
attempting such a judgment it must be right to exclude any lingering
thought that the prerogative of mercy is no more than an arbitrary
monarchial right of grace and favour. As developed it has become an
integral element in the criminal justice system, a constitutional
safeguard against mistakes.
xxx

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 Mr Pannick relies on this passage. He argues that the prerogative of mercy is
exercised by the Home Secretary on behalf of us all. It is an important
feature of our criminal justice system. It would be surprising and regrettable
in our developed state of public law were the decision of the Home Secretary
to be immune from legal challenge irrespective of the gravity of the legal
errors which infected such a decision. Many types of decisions made by the
Home Secretary do involve an element of policy (eg. parole) but are subject
to review.
We accept these arguments, The CCSU case made it clear that the powers of the court
cannot be ousted merely by invoking the word 'prerogative', The question is simply
whether the nature and subject matter of the decision is amenable to the judicial
process".
2 4 . In "JUDICIAL REVIEW OF ADMINISTRATIVE ACTION" (Fifth Edition) by the
Retired Hon'ble the Lord Woolf it has been noted as follows:
Other former prerogative powers should not any more, however,
automatically be assumed to be non-justiciable. It is noticeable that one of
the prerogative powers assumed by Lord Roskill in the GCHQ case to be non-
justiciable, the prerogative of mercy, has since been judicially reviewed. In
R. v. Secretary of State for the Home Department. exp Bentley, the applicant
applied for review of the Home Secretary's decision not to pardon her brother
who had been sentenced to death and hanged 39 years earlier. The applicant
contended that the Home Secretary had erred in law in his approach to the
issue in that he considered that the grant of free pardon required the finding
that her brother was morally and technically innocent, where the right
question to be asked was whether in all the circumstances the punishment
imposed should have been suffered. It was held that the decision ought to be
based upon accepted public law principles and not be immune from legal
challenge, despite the element of policy in the decision. The Home
Secretary's failure to consider the grant of a posthumous pardon when the
previous Home Secretary's decision had been wrong was held to be a clear
error of law. The court broke new ground in this case, guided only by a
recent decision of the New Zealand Court of Appeal.
2 5 . In "THE CONSTITUTION OF UNITED STATES OF AMERICA" (Analysis and
Interpretation) "Pardons and Reprieves" have been stated as follows:
The Legal Nature of a Pardon
In the first case to be decided concerning the pardoning power, Chief Justice
Marshall, speaking for the Court, said: "As this power had been exercised
from time immemorial by the executive of that nation whose language is our
language, and to whose judicial institution ours bear a close resemblance;
we adopt their principles respecting the operation and effect of a pardon, and
look into their books for the rules prescribing the manner in which it is to be
used by the person who would avail himself of it. A pardon is an act of
grace, proceeding from the power entrusted with the execution of the laws,
which exempts the individual, on whom it is bestowed, from the punishment
the law inflicts for a crime he has committed. It is the private, though official
act of the executive magistrate delivered to the individual for whose benefit it
is intended, and not communicated officially to the Court.... A pardon is a
deed, to the validity of which delivery is essential, and delivery is not
complete without acceptance. It may then be rejected by the person to whom

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 it is tendered; and if it be rejected, we have discovered no power in a court
to force it on him." Marshall continued to hold that to be noticed judicially
this deed must be pleaded, like any private instrument.
In the case of Burdick v. United States, Marshall's doctrine was put to a test
that seems to have overtaxed it, perhaps fatally. Burdick, having declined to
testify before a federal grand jury on the ground that his testimony would
tend to incriminate him was proffered by President Wilson "a full and
unconditional pardon for all offenses against the United States," which he
might have committed or participated in connection with the matter he had
been questioned about. Burdick, nevertheless, refused to accept the pardon
and persisted in his contumacy with the unanimous support of the Supreme
Court. "The grace of a pardon," remarked Justice McKenna sententiously,
"may be only a pretense...involving consequences of even greater disgrace
than those from which it purports to relieve. Circumstances may be made to
bring innocence under the penalties of the law. If so brought, escape by
confession of guilt implied in the acceptance of a pardon may be rejected...."
Nor did the Court give any attention to the fact that the President had
accompanied his proffer to Burdick with a proclamation, although a similar
procedure had been held to bring President Johnson's amnesties to the
Court's notice. In 1927, however, in sustaining the right of the President to
commute a sentence of death to one of life imprisonment, against the will of
the prisoner, the Court abandoned this view. "A pardon in our days," it said,
"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 the public welfare will be better served by
inflicting less than what the judgment fixed." Whether these words sound the
death knell of the acceptance doctrine is perhaps doubtful. They seem clearly
to indicate that by substituting a commutation order for a deed of pardon, a
President can always have his way in such matters, provided that substituted
penalty is authorised by law and does not in common understanding exceed
the original penalty.
26. Coming to the factual position it is noticed that 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 Collector's
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.
27. 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

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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.
The convict Guru Venkata Reddy S/o Janardhan Reddy, Central Prison
Cherlapalli belongs to Upper Caste Reddy's family of Brahmanakotkur
(Village) Nandikotkur Mandal and Taluk. The father of the convict was
Janardhan Reddy and mother was Guru Lakshmi Devi and during enquiry it is
revealed that both were dead. The grand mother of convict Smt. Ratnamma
is old, aged and there is no male person in the house to look after her. She
desires that the convict should come and provide medical treatment to her.
In the past the convict contested in the elections and was defeated with small
margin. During enquiry it is revealed that the convict is Congress Worker and
due to political conspiracy he was defeated. In the elections conducted later
on the wife of convict Smt. Saritha Reddy contested and was elected. During
enquiry it is revealed that the matters mentioned in the application of the
wife of the convict are true. The convict has two sisters. The deceased K.
Rama Subbaiah and Ambi Reddy belong to Nandikotkur village. In this
murder case the convict is not involved but due to political reasons his name
was implicated in the case by producing false witnesses and sent to the Jail.
But later they realized their mistake and the family members of the deceased
are maintaining cordial relations. During enquiry it is revealed that there is
no danger to the life of the convict from the villagers and also there is no
danger to the villagers from the convict if the convict is released as stated by
the President of the village Shri Shaik Ziauddin, Village Secretary Sri
Sanjanna, village elders Shri Nagaswamy Reddy, Sri K. Venkata Rami Reddy,
Shri Khajamoinuddin and Sri Pathan Moutali etc.
As seen from the past history of the convict he is not a naxalite, dacoit, and
habitual offender. He was peacefully carrying out agricultural activities and a
good Congress Worker. He used to provide employment to a number of
persons through agriculture. It is also revealed that the villagers are having
good opinion on the convict.
(underlined for emphasis)
2 8 . 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 Court's 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.
29. 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. 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

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exercised. 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.
3 0 . 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. However, it is open
to the respondent No. 1 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. The writ petitions are allowed to the extent indicated above. No costs.
S.H. Kapadia, J.
3 1 . 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.
3 2 . 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.
33. 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.
34. 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

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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.<mpara>
35. 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.
3 6 . 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.
3 7 . 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

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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.

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