Clemency Powers Open To Judicial Review

In an apparent messagein the midst of the controversy over clemency to Mohd Afzal Guru, Supreme Court today held that the powers ofPresident and Governor to grant clemency was open to "judicial review"and extraneous considerations like political loyalty, religion andcaste cannot be grounds for granting pardon to a convict.

Thefar-reaching judgement came from Bench of the apex court that set asideremission of a sentence given by the then Andhra Pradesh GovernorSushil Kumar Shinde to a Congress activist sentenced to 10 yearsimprisonment in a murder case.

"Considerationsof caste, religion and political loyalty are irrelevant and fraughtwith discrimination. These are prohibited grounds (for grant ofclemency)," a Bench of Justice Arijit Pasayat and Justice S H Kapadiasaid.

Concurringwith Justice Pasayat's view on powers and scope of the President andthe Governor to grant pardon to the convict which was open to judicialreview if that was obtained on "patent misrepresentation" or "fraud",Justice Kapadia said there could not be any compromise on the issue ofclemency.

"Ruleof law is the basis of all evaluation of all decisions. The supremequality of the Rule of law is fairness and legal certainty. Theprinciple of legality occupies a central plan in rule of law...Thatrule cannot be compromised on the grounds of political expediency," thejudge said.

"The power of executive clemency is not only forthe benefit of the convict, but while exercising such a power, thePresident or the Governor, as the case may be, has to keep in mind theeffect of his decision on the family of the victims, the society as awhole and the precedent it sets for the future," Justice Kapadia said.

Holdingthat the power to grant pardon was "not an act of grace," the courtsaid it was an enumerated and prerogative power in the Constitutionitself.

"It isnot a matter of privilege. It is a matter of performance of officialduty. It is vested in the President or the Governor, as the case maybe, not for the benefit of the convict only, but for the welfare of thepeople who may insist on performance of the duty. This discretion,therefore, has to be exercised on public consideration alone," thecourt said.

Thecourt held that the principle of exclusive cognizance would not applywhen if the decision impugned was in derogation of a constitutionalprovision.

"This is the basis working test to be applied while granting pardons, reprieves, remissions and commutation," the court said.

Maintainingthat granting of pardon was in no sense an overturning of a verdict ofconviction but rather an executive action that mitigates or set asidethe punishment for a crime, the court said "it eliminates the effect ofconviction without addressing the defendants guilt or innocence".

Whilequashing the pardon granted to the convict, Justice Pasayat held thatthe clemency petition before the Governor was filed with unclean handas there was no mention of the fact that a criminal case was pendingagainst him.

The then Governor had decided to remit the sentence of Reddy on the plea by his wife Gowru Charitha, a Congress MLA.

Theconviction was upheld by the apex court for Reddy's involvement inmurder of TDP activists from Nandikotkur village in Kurnool district.

The Governor, exercising his power under Article 161 of the Constitution, had granted pardon to the convict.

The President and the Governor have to keep in mind the effect of suchpardon on the family of the victims, the society as a whole and theprecedent it sets fo the future, the Bench said.

The ruling hascome at a time when President A P J Abdul Kalam has been faced with theclemency petition filed on behalf of Mohd Afzal, the Jaish-e-Mohammedmilitant, sentenced to death for his role in Parliament terror attackcase.

Thepetition has been opposed by the family members of thesecurity personnel who laid their lives while protecting the supremeseat of democracy.

Thecourt quashed the grant of pardon by Shinde on August 11, 2005 to aCongress activist Gowru Venkata Reddy convicted and sentenced toten-years' imprisonment in a murder case involving Telugu Desam Partyworkers -- Epuru Chinna Ramasubbaiah, Ambi Reddy and P Tirupati Reddyin 1995 and 1996.

Thepetition by Epuru Sudhakar, son of Ramasubbaiah and and sons of otherdeceased, had sought quashing of the Governor's order since Reddy wasgranted remission of his remaining seven years sentence.

TheBench, which examined the power of the President and the Governor togrant power to the convict, said the exercise of executive clemency isnot a privilege but based on several principles and the discretion hasto be exercised in public consideration alone.