Author: Gaganpreet kaur gill, Law student at Chandigarh University.

Editor: Jahnvi  goel, Law student at Amity University.

1. ABSTRACT

In India , the pardoning power has been given in order to correct potential injustices  and to provide clemency. Thus, in a simple words pardon means to ‘Releases a convict from further punishment for the crime’ and‘to erase the conviction itself’ (in the case of a Governor’s pardon).The pardon power under the Indian Constitution, enshrined in Articles 72 and 161, empowers the President and Governors to act as a safeguard against potential injustices within the legal system. Similarly, the above mentioned case mentions that can Governor’s pardon power be challenged in court if it’s seen as unfair or influenced by improper motive. Where the Supreme Court ruled that the Governor’s power to grant pardons under Article 161 of the Constitution is subject to judicial review under certain circumstances. The court held that while the power itself is discretionary, it cannot be exercised arbitrarily or based on irrelevant factors like religion, caste, or political affiliation. The rule of law and fairness should guide the decision. This case established that the Governor’s pardon power isn’t absolute and can be reviewed by courts if misused. It set guidelines for the exercise of this power to ensure fairness and prevent its misuse for political or other extraneous reasons.

Keywords:- pardon power, governor , murder, death sentence, judicial review.

1. CASE DETAILS

1. INTRODUCTION AND BACKGROUND OF JUDGEMENT

The concept of pardon, a vestige of the British Crown’s prerogative, empowers the President under Article 72  and Governors under Article 161 of the Indian Constitution to correct potential injustices arising from harsh laws or erroneous judgments. A pardon relieves a convicted individual from further punishment. Notably, the Governor’s pardon can erase both the conviction and sentence, effectively absolving the individual. The process In India typically involves a mercy petition submitted to the President. Governors, appointed by the President, hold various constitutional powers, including judicial powers like granting pardons. This power, given to the President’s under Article 72, is a constitutional duty, not a discretionary privilege.However, the Governor’s scope is narrower. Only the President can pardon court-martial convictions or death sentences. Additionally, the Governor exercises the State government’s sovereign power under Article 161, not his own independent authority. While Article 21 guarantees the right to life, no codified procedure governs mercy petitions. In practice, after exhausting legal avenues, a convict or their representative submits a written petition to the President’s secretariat. The petition is then forwarded to the Ministry of Home Affairs for evaluation and recommendations. Importantly, a pardon is not a right; it’s an act of clemency based on factors like the convict’s health, family circumstances, or sole breadwinner status.

Thus the case involves the matter of a capital punishment conviction, the Respondent (accused) was sentenced to death by the High Court of Andhra Pradesh for the willful homicide or murder of a political rival. Subsequently, the Governor granted the Respondent a pardon. However, the Supreme Court of India intervened and quashed the Governor’s exercise of the pardoning power. The Court established a legal principle, holding that any invocation of the pardoning power by the Governor is subject to judicial review and can be set aside if motivated by extraneous considerations such as caste, religion, or political affiliation. Furthermore, the Court clarified the scope of judicial review over the President’s or Governor’s pardoning power. The decision to grant a pardon can be challenged if it is deemed arbitrary, lacking due process, influenced by improper motives (mala fide), or based on irrelevant factors unrelated to the merits of the case.

1. FACTS OF THE CASE

• Petitioner No. 1 is the son of the late Shri Epuru China Ramasubbaiah, who was murdered along with another person on 19.10.1995. Petitioner No. 2 claims to be the son of the late Shri Tirupati Reddy, who was allegedly murdered by Respondent No. 2 while Respondent No. 2 was on bail in the murder case of the father of Petitioner No. 1.
• In the case related to the murder of the late Shri Epuru China Ramasubbaiah and one Ambi Reddy, Respondent No. 2 faced trial, and the matter ultimately reached the Supreme Court in Criminal Appeal Nos. 519-521 of 2003. The Supreme Court, in its judgment dated 19.11.2003, altered the conviction of Respondent No. 2 from one under Section 302 of the Indian Penal Code, 1860 (IPC) to one under Section 304(1) read with Section 109 of the IPC, and imposed a custodial sentence of 10 years’ rigorous imprisonment. The conviction relating to some other sentences was maintained.
• On 28.5.2003, Respondent No. 3, the wife of Respondent No. 2, submitted a representation for the grant of parole to Respondent No. 2. Parole was granted on 18.10.2003 for a period of 15 days, but the same was later cancelled on 30.10.2003 by the State Government due to the likelihood of a breach of peace and law and order if Respondent No. 2 visited the Nandikotkur Assembly Constituency, as per the report by the Superintendent of Police, Kurnool.
• Respondent No. 3 contested and won the Andhra Pradesh Assembly election on 12.5.2004. On 14.5.2004, she made a representation for the grant of parole to Respondent No. 2, which was granted on 19.5.2004 and subsequently extended from time to time. On 18.7.2004, a fourth extension of 15 days was granted.
• On 10.10.2004, Respondent No. 3 made a representation to Respondent No. 1 (the Governor of Andhra Pradesh) seeking a pardon for Respondent No. 2, alleging that he had been implicated in false cases due to political rivalry. During the pendency of the petition for pardon, one-month parole was granted to Respondent No. 2 on 18.10.2004.
• On 11.8.2005, the Governor of Andhra Pradesh purportedly exercised the power under Article 161 of the Constitution and granted remission of the unexpired sentence of Respondent No. 2. The Director General and Inspector General of Police (Correction Services), Andhra Pradesh, were directed to take action for the release of Respondent No. 2, and on 12.8.2005, the Superintendent of Central Prison, Cherlapally, R.R. District, directed the release of Respondent No. 2.

Thus ,”the writ petition has been filed, alleging, inter alia, that the grant of remission (described in the writ petition as the grant of pardon) was illegal, relevant materials were not placed before the Governor, and the impugned order was passed without the application of mind.

The recommendations made for the 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 a pardon was the alleged implication in false cases due to political rivalry. In view of this Court’s judgment holding Respondent No. 2 guilty, the said plea could not have been even considered as a basis for the grant of pardon.

Since the grant of pardon is based on the consideration of irrelevant materials and the non-consideration of relevant materials, the same is liable to be set aside.”[1]

1. LEGAL ISSUES RAISED

1. Whether judicial review can be exercised to supersede the presidential pardon?
2. What is the extent of the power of governor or president, as far as their pardoning power is concerned, is it an absolute power?
3. What are the limitations that can be imposed on this power?
4. What are the responsibilities of the governor or president while exercising this pardoning power under Indian constitution?

1. PETITIONER/ APPELLANT’S ARGUMENTS
2. The counsels for Petitioner / Appellant submitted that the petitioner’s learned counsel argued that the congressional activist who was convicted by the then-Andhra Pradesh governor, 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.”[2]

1. RESPONDENT’S ARGUMENTS
   1. The counsels for Respondent submitted thatthe “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.”[3]

1. RELATED LEGAL PROVISIONS

This case completelyrevolve around the provisions to grant pardon under  the Indian Constitution and 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 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 by a court martial.

(3)Nothing in sub-clause © 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.[4]”

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.”[5]

1. JUDGEMENT

The Court of Criminal Appeals overturned the judgment of preliminary examination by Respondent No. 2, and the conviction was modified from one under Section 203 of the Indian Penal Code to Section 304(1) read with Section 109. A custodial sentence of 10 years’ rigorous imprisonment was imposed. Respondent No. 3 filed an application for parole, which was granted for 15 days. However, the equivalent was revoked by the State Government considering the report sent by the Superintendent of Police. Due to the pendency of the request for parole, a one-month parole was subsequently granted.

The Governor of Andhra Pradesh exercised power under Article 161 and granted a reduction of the unexpired sentence of Respondent No. 2, and his request for release was accordingly directed. A writ appeal was filed challenging the lawfulness of the reduction of the sentence by the Governor, alleging that the material facts were not taken into consideration. The said petition could not have even been considered as a ground for the grant of pardon. This is a situation where materials existed which justified the grant of abatement, and the Court ought not to interfere in the present matter.

The learned counsel for the respondents argued that while in the case of Maru Ram v. Union of India[6],this Court had laid down advisory guidelines, the same did not find recognition in the case of Kehar Singh v. Union of India[7]. Later, in the case of Ashok Kumar v. Association of India and Ors.[8], the alleged apparent irregularities within the view were highlighted, and the Court held that the laying down of guidelines may be inappropriate.

The relevant constitutional provisions regarding the grant of pardon, reductions, suspension of sentence, and others were considered.

Examining the precedents, in the case of Maru Ram, it was held that all public power, including constitutional power, will be exercised arbitrarily, mala fide, and in violation of the principles of fairness and equal treatment. Considerations of religion, caste, color, or political allegiance are entirely irrelevant and discriminatory. In the Kehar Singh case, it was held that the order of the President cannot be subjected to judicial review on its merits, except within the strict limitations explained in the Maru Ram case. The Court held that the domain of the President’s power under Article 72 falls within the judicial domain and can be examined by the Court through the process of judicial review.

The Court then considered the rulings in the case of Swaran Singh v. State of U.P[9]. The Court held that if the pardon power was exercised arbitrarily, mala fide, or in total disregard of the higher principles of constitutionalism, the resultant order cannot receive the imprimatur of law, and in such cases, the judicial hand should be extended to it. It further observed that the order of the Governor impugned is subject to judicial review within the strict boundaries set down in the Maru Ram and Kehar Singh cases and left it open for the Governor of U.P. to pass new orders.

It was also held that the High Court can quash the Governor’s pardoning power if it was exercised on political, caste, or religious grounds. The grant of clemency by the President or Governor can be challenged if the order has been passed without the application of mind, mala fide, or irrelevant or wholly unnecessary considerations, based on falsehood, and relevant material has been kept out of consideration.

In the case of Tata Cellular v. The Federal Court of India[10], it was held that when conducting a judicial review of the executive pardon, the court does not act as an appellate court since it lacks expertise in correcting administrative decisions, but rather examines the manner in which decisions are made. Thus, in the cases cited, it can be demonstrated that the court can conduct a judicial review of the executive pardon to address unfair and arbitrary decisions. However, the scope is limited.

The convict was not Involved but due to political reasons, his name was implicated in the case by producing false witnesses and sent to prison. In earlier times, there was a basic principle that if the king is deceived, the pardon is void. The discretion must be exercised on public considerations alone. The principle of exclusive knowledge would not apply when and if the decision impugned is in derogation of constitutional provisions. The Rule of Law principle contains a requirement of government according to law. The power of executive clemency is not only to benefit the convict, but while exercising such a power, the President or the Governor must, in all cases, bear in mind the impact of their decision on the victim’s family, the society at large.

1. CONCLUSION

Mercy petitions are complex process but also offer potential benefits and sometimes cause hardship when delays occur in processing them. These delays impact both the convicted and the victims, unintentionally hindering justice and prolonging the victim’s suffering. To ensure a more efficient legal system, clear time limits and policies are needed to prevent unnecessary delays in both filing and granting mercy petitions. In this case, 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.

1. REFERENCES
   1. Important Cases Referred

• Maru Ram vs Union of India,1981 1SCC 107
• Kehar Singh v. Union of India, 1989 1SCC 204
• Ashok Kumar v. Association of India and Ors., 1991 SCR(2) 858
• Swaran Singh v. State of U.P, 1998 4SCC 75
• Tata Cellular v. The Federal Court of India, 1996 AIR 11.

1. Important Statutes Referred

• 72 , Indian Constitution
• 161, Indian Constitution
• Section-109 , Indian Penal Code,1860
• Section-302, Indian Penal Code,1860

[1]Arijit pasayat, Epuru Sudhakar vs. Govt of India, 2006 , https://indiankanoon.org/doc/758562/( last visited on June 3 , 2024)

[2]Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors , 2006 , https://legalvidhiya.com/epuru-sudhakar-anr-vs-govt-of-a-p-ors/#_ftn7 ( last visited on June 3 , 2024) .

[3]Arijit Pasayat, Epuru Sudhakar vs. Govt of India, 2006 , https://indiankanoon.org/doc/758562/( last visited on June 3 , 2024)

[4] The Constitution of India, art.72

[5]The Constitution of India, art.161.

[6]Maru Ram vs Union of India,1981 1SCC 107

[7]Kehar Singh v. Union of India, 1989 1SCC 204

[8]Ashok Kumar v. Association of India and Ors., 1991 SCR(2) 858

[9]Swaran Singh v. State of U.P, 1998 4SCC 75

[10]Tata Cellular v. The Federal Court of India, 1996 AIR 11.