By:- Khan Ahmad Darvesh
In the Supreme Court of India
|NAME OF THE CASE||Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors|
|CITATION||Writ Petition (crl.) 284-285 of 2005|
|DATE OF THE CASE||11 October, 2006|
|APPELLANT||Epuru Sudhakar and Anr.|
|RESPONDENT||Govt. of Andhra Pradesh and Ors.|
|BENCH/JUDGE||J. Arijit Pasayat|
|STATUTES/CONSTITUTION INVOLVED||Constitution of India; Indian Penal Code|
|IMPORTANT SECTIONS/ARTICLES||Article 72 and 161 of Indian Constitution; Section 302 and 109 of Indian Penal Code.|
In common parlance, to pardon means to forgive a person of his offence. The term ‘pardon’ has been defined as an act of grace, proceeding from the power entrusted with the execution of the law, which exempts the individual on whom it is bestowed upon, from the punishment the law inflicts for a crime he has committed. It affects both the punishment prescribed for the offence and the guilt of the offender.
In other words, grant of pardon wipes off the guilt of accused and brings him to the original position of innocence as if he had never committed the offence for which he was charged. Under Indian law, the President of India and the Governors of States have been given the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence. The law governing grant of pardon is contained in Articles 72 and 161 of the Constitution.
This is an answer to a writ petition filed, alleging that the grant of remission of the sentence of a convicted congress activist by the then Governor of Andhra Pradesh Sushil Kumar Shinde was illegal since relevant materials were not placed before the Governor and, that the impugned order was passed without the application of the mind. The legal issue in question is relating to the extent of judicial review over the power of pardon.
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.
BACKGROUND OF THE CASE
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.
FACTS OF THE CASE
Petitioner No.1 (Epuru Sudhakar) is the son of late Sh. Epuru Chinna Ramasubbaiah 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 Ramasubbaiah and one Ambi Reddy, respondent No.2 faced trial and ultimately the matter came before this Court in Criminal Appeal Nos. 519-521 of 2003 which was 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 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 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.
ISSUE RAISED BEFORE THE COURT
- The legal issue in question is relating to the extent of judicial review over the power of pardon and is it misused?
ARGUMENTS FROM THE APPELLANT SIDE
- The learned counsel for the petitioner argued that the congressional activist who was convicted by the then governor of Andhra Pradesh, Sushil Kumar Shinde’s sentence immunity was illegal because the relevant materials were not submitted to the governor and the controversial order was Adopted under consideration.
ARGUMENTS FROM THE RESPONDENT SIDE
- The learned counsel for the defendant and defendants 2 and 3 strongly argued that the petition was the result of political retaliation. The Governor has considered all relevant materials, and the Governor is the high-level constitutional authority that approves the order to grant referrals. The petitioner allegedly confuses pardons and sentence reductions. This case has materials to be forwarded, and this hospital should not intervene. In view of the limited scope of judicial review, the order application should be rejected.
- The learned counsel for the defendant on the other hand, argued that although in Maru Ram v. Union of India & Others [1981 (1) SCC 107], the court had already pointed out certain advisory guidelines, they argued in Kehar Singh and Another v Union of No acceptance was found in India and another [1989 (1) SCC 204].
This case revolves around the provision of judicial power to grant pardon.
In India, the power to grant pardon is conferred upon the President of India and the Governors of States under Articles 72 and 161 of the Constitution of India.
- Article 72 :
(1) The President 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—
(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.
Thus, Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute sentences in certain cases.
- Article 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 Article deals with the power of the 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. Thus, this Article empowers the Governors of States to grant pardon, reprieves, respites or remissions of punishment or suspend, remit or commute the sentence of a person convicted of an offence against a law relating to a matter to which the executive powers of the State extends.
Pardon as a mode of mitigating the sentence of the accused has always been a controversial issue for a long time. Those who reject pardon as an effective measure of mitigating circumstances argue that the power to pardon is often misused by the executive. There is a possibility that the convict may procure his release from prison by exerting undue influence on the executive authority. To avoid these flaws, in most of the countries, there is a provision for judicial review of the pardon granted in the event of grounds for pardon being found unsatisfactory.
The Hon’ble Supreme Court first explained the reasons for the existence of administrative indulgence, pointed out that it was established to avoid injustice towards the convicted person and admitted that the criminal had seen his mistakes and society would not gain anything. His subsequent incarceration and his future behavior as an upstanding and law-abiding citizen. In addition, it alleviates the excessive rigor in the operation or execution of criminal justice by considering that the public welfare is the legal object of any sanction.
Another argument is that judicial enforcement by the court is not always wise or affirmative, which can adequately alleviate guilt. To provide remedies, governments and monarchies believe that powers beyond the courts must be granted, that is, the power to improve or avoid certain criminal convictions.
In England, this power takes the form of royal pardon privileges exercised by the monarch. It is generally exercised by the Secretary of the Interior for various reasons, mainly to avoid judicial errors, an act of grace. However, in the United States, leniency power is mainly regarded as a constitutional plan. When I came to India, this power was a constitutional responsibility and should be exercised with reasonable discretion.
The Hon’ble court next distinguished that the function of judicial power is to deliver justice and sentence criminals, and the function of executive power is to execute judgments. When the President exercises the power of pardon and examines the evidence that appears in the criminal case file and draws different conclusions on the guilt and punishment of the defendant; he shall not modify, change or replace judicial records in any way.
The ruling of the honourable court is still intact. Under constitutional power, the president exercises what is often called “benevolent jurisdiction.” This power is on a different level and is completely different from the judiciary, the former cannot be considered an extension of the latter. Therefore, the act of shortening the sentence through a presidential pardon is an exercise of executive power, limiting the judgment of the judicial department, but not eliminating it completely.
But does this mean that the administrative power to grant pardons is absolute and is not subject to any supervision by the judiciary? The decision cited a number of previous Supreme Court cases, which successfully attempted to answer whether the nature and subject matter of the president’s decision were suitable for court proceedings. The Supreme Court in Maru Ram v. The Federation of India believes that Article 72 “should not be exercised arbitrarily, maliciously or in complete disregard of the highest constitutional standards.” If the by-product cannot be recognized by law, you should contact the judiciary.
The case of Kehar Singh v. The Union of India held that when the president exercises administrative leniency, he can learn the merits of the case, even though the Supreme Court has already made a judicial decision. However, the President’s order can only be subject to judicial review of its merits within the strict limits established in the Maru Ram case.
In Tata Cellular v. The Federal Court of India held that when conducting judicial review of a presidential pardon, the court does not act as an appeal court because it lacks experience in correcting administrative decisions, but rather examines the way in which decisions are made. Worry about the only legality issue. If the president pardons a.) it is beyond its power, b.) it has committed a legal error, c.) it has violated the rules of natural justice, d.) it has made a decision that a reasonable court has arrived, and e .) Abuse of its power.
Therefore, in all of these cited cases, it can be proved that the court can conduct judicial review of the presidential pardon to correct unfair or arbitrary decisions. However, the scope is limited. The powers of the judiciary only apply when the order has been approved a.) Unintended application, b.) Failure to follow the recommendations of the Council of Ministers c.) This is dishonest d.) e.) Relevant materials are excluded Out of consideration and f.) Arbitrary materials.
What is the above situation, who decides that the presidential pardon falls into this situation? To answer this question, Judge Passayat took note of the opinion of Sir William Wade, a well-known academic lawyer, and confirmed that the wide range of wording in Article 72 cannot clarify the specific criteria for exercising this power because of facts and individual cases. case.
However, the doctrine that power should be exercised reasonably should be consistent with the doctrine that the court should not usurp the discretion of the president for pardons. Only within the scope of legal rationality can the president have real discretion. If you cross these restrictions, please take ultra vires action. Only in these cases will the court intervene and allow judicial review.
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.
In a nutshell, the judgement is one of paramount importance as it answers whether judicial review over presidential pardon makes Article 72 redundant in the negative. A corpus of past Supreme Court cases suggests that, Presidential Pardon is amenable for Judicial Revision, though limited – only available when executive clemency surpasses the boundaries of legal reasonableness resulting out of the sheer balance between administrative and judicial power still evident today.
 Maru Ram vs Union of India and Ors, 1981 (1) SCC 107
 Constitution of India, 1950, Article 72
 Constitution of India, 1950, Article 161
 Kehar Singh vs Union of India, 1989 AIR 653, 1988 SCR Supl. (3) 1102
 Tata Cellular vs Union of India, 1996 AIR 11, 1994 SCC (6) 651