'These Are Not Acts Of Grace'

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

PETITIONER:
Epuru Sudhakar & Anr.

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

DATE OF JUDGMENT:
11/10/2006

BENCH:
S. H. KAPADIA

JUDGMENT:
J U D G M E N T

KAPADIA, J.

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

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

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

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

Exercise of Executive clemency is a matter of discretion and yet subject tocertain standards. It is not a matter of privilege. It is a matter ofperformance of official duty. It is vested in the President or the Governor, asthe case may be, not for the benefit of the convict only, but for the welfare ofthe people who may insist on the performance of the duty. This discretion,therefore, has to be exercised on public consideration alone. The President andthe Governor are the sole judges of the sufficiency of facts and of theappropriating of granting the pardons and reprieves. However, this power is anenumerated power in the Constitution and its limitations, if any, must be foundin the Constitution itself. Therefore, the principle of Exclusive Cognizancewould not apply when and if the decision impugned is in derogation of aConstitutional provision. This is the basic working test to be applied whilegranting pardons, reprieves, remissions and commutation.

Granting of pardon is in no sense an overturning of a judgment of conviction,but rather it is an Executive action that mitigates or set aside the punishmentfor a crime. It eliminates the effect of conviction without addressing thedefendants guilt or innocence. The controlling factor in determining whether theexercise of prerogative power is subject to judicial review is not its sourcebut its subject matter. It can no longer be said that prerogative power is ipsofacto immune from judicial review. An undue exercise of this power is to bedeplored. Considerations of religion, caste or political loyalty are irrelevantand fraught with discrimination. These are prohibited grounds. Rule of Law isthe basis for evaluation of all decisions. The supreme quality of the Rule ofLaw is fairness and legal certainty. The principle of legality occupies acentral plan in the Rule of Law. Every prerogative has to be the subject to theRule of Law. That rule cannot be compromised on the grounds of politicalexpediency. To go by such considerations would be subversive of the fundamentalprinciples of the Rule of Law and it would amount to setting a dangerousprecedent. The Rule of Law principle comprises a requirement of "Governmentaccording to law". The ethos of "Government according to law"requires the prerogative to be exercised in a manner which is consistent withthe basic principle of fairness and certainty. Therefore, the power of executiveclemency is not only for the benefit of the convict, but while exercising such apower the President 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 a whole andthe precedent it sets for the future.

The power under Article 72 as also under Article 161 of the Constitution isof the widest amplitude and envisages myriad kinds and categories of cases withfacts and situations varying from case to case. The exercise of power dependsupon the facts and circumstances of each case and the necessity or justificationfor exercise of that power has to be judged from case to case. It is importantto bear in mind that every aspect of the exercise of the power under Article 72as also under Article 161 does not fall in the judicial domain. In certaincases, a particular aspect may not be justiciable. However, even in such casesthere has to exist requisite material on the basis of which the power isexercised under Article 72 or under Article 161 of the Constitution, as the casemay be. In the circumstances, one cannot draw the guidelines for regulating theexercise of the power.

As stated above, exercise or non-exercise of the power of pardon by thePresident or the Governor is not immune from judicial review. Though, thecircumstances and the criteria to guide exercise of this power may be infinite,one principle is definite and admits of no doubt, namely, that the impugneddecision must indicate exercise of the power by application of manageablestandards and in such cases courts will not interfere in its supervisoryjurisdiction. By manageable standards we mean standards expected in functioningdemocracy. A pardon obtained by fraud or granted by mistake or granted forimproper reasons would invite judicial review. The prerogative power is theflexible power and its exercise can and should be adapted to meet thecircumstances of the particular case. The Constitutional justification forjudicial review, and the vindication of the Rule of Law remain constant in allareas, but the mechanism for giving effect to that justification varies.

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

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

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