Introduction:
In India, the procedure of granting pardon begins with the submission of a mercy plea to the president under Article 72[1] of the constitution. This petition is first examined by the home ministry in cooperation with the affected state government, and then it is forwarded to the president based on the home minister’s recommendations.
The authority to pardon is built into the constitution. Article 72 of the constitution gives the President the authority to award pardons, reprieves, respites, or remissions of penalty, as well as to suspend, remit, or commute the sentence of any individual convicted of any offence.
The ministerial council would monitor misuse of usage. Similarly, Article 161[2] of the constitution allows the Governor of a state the same right against any individual guilty of any offence against any legislation related to topics within the state’s executive competence.
Background of the case:
The writ petition alleges, among other things, that the award of remission (characterised in the writ petition as grant of pardon) was invalid, that necessary materials were not presented to the Governor, and that the impugned decision was issued without application of mind. The remission suggestions were based on irrelevant and unnecessary materials. The Governor has not been presented with the facts in the correct context. Respondent No.3’s primary reason for seeking pardon was claimed involvement in bogus charges owing to political rivalry. Given this Court’s decision finding respondent No.2 guilty, the plea could not have been used as a basis for award of pardon. The award of pardon is susceptible to be thrown aside since it is based on consideration of irrelevant materials and non-consideration of pertinent ones.
Facts of the case:
- Petitioner No. 1 (Epuru Sudhakar) is the son of late Sh. Epuru Chinna Ramasubbaiah, who was killed on October 19, 1995, along with another person. Petitioner No.2 claims to be the son of late Sh. Tirupati Reddy, who was allegedly murdered by respondent No.2 while on bail for the murder of petitioner No.1’s father.
- Respondent No.2 faced trial in the case relating to the murder of late Sh. Epuru Chinna Ramasubbaiah and one Ambi Reddy, and the matter eventually came before this Court in Criminal Appeal Nos. 519-521 of 2003, which was disposed of by this Court by judgement dated 19.11.2003, and the conviction of respondent No.2 was changed from one under Section 302[3] of the Indian Penal Code, 1860 to Section 304(1)[4] read with Section 109[5] IPC The conviction for certain additional penalties was upheld.
- On 28.5.2003, the respondent No.3 wife of respondent No.2 submitted a representation for the grant of parole to respondent No.2, and on 18.10.2003 parole was granted for a period of 15 days, but it was cancelled on 30.10.2003 by the State Government in light of the report sent by Superintendent of Police, Kurnool that there was a likelihood of breach of peace and law and order if respondent No.2 visited Nandikotkur Assembly Constituency.
- Respondent No.3 ran in the Andhra Pradesh Assembly Election and was elected to the Legislative Assembly on May 12, 2004. On May 14, 2004, she requested that respondent No.2 be granted parole. The same was given on May 19, 2004 and was periodically extended.
- On July 18, 2004, a fourth 15-day extension was granted. On October 10, 2004, respondent No.3 submitted a representation to respondent No.1 requesting that respondent No.2 be pardoned through the exercise of authority under Article 161 of the Constitution, saying that he was entangled in false charges owing to political rivalry. One month parole was given on October 18, 2004, while the plea for pardon was pending.
- On 11.8.2005, the Governor of Andhra Pradesh allegedly exercised jurisdiction under Article 161 of the Constitution by granting remission of respondent No.2’s unfulfilled sentence. The Director General and Inspector General of Police (Correction Services) of Andhra Pradesh were told to take action for respondent No.2’s release, and on 12.8.2005, the Superintendent of Central Prison, Cherlapally, R.R. District, ordered respondent No.2’s release.
Issues:
- Is it possible to use judicial review to override the presidential pardon?
- What is the scope of the governor’s or president’s power in terms of pardoning, and is it an absolute power?
- What are the constraints that can be placed on this power?
- What are the governor’s or president’s obligations while employing this pardoning power under the Indian constitution?
Arguments from the Appellant’s side:
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.”[6]
Arguments from the Respondent’s side:
“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.”[7]
Statues Involved:
Bench:
- Justice Arijit Pasayat
Judgment:
The Hon’ble Supreme Court first highlighted the grounds for the establishment of administrative indulgence, emphasising that it was intended to avoid injustice to the guilty individual and admitting that the criminal had recognised his mistakes and society would not benefit. His subsequent imprisonment, as well as his future behaviour as a law-abiding citizen. Furthermore, it reduces the excessive rigour in the administration or execution of criminal justice by recognising that the public good is the legitimate purpose of any sentence.
Another point is that judicial enforcement by the court is not always intelligent or affirmative, and that it does not always effectively alleviate guilt. To give remedies, governments and monarchies think that powers outside the courts, such as the ability to ameliorate or prevent certain criminal convictions, must be provided.
The Hon’ble Court then stated that the job of judicial authority is to dispense justice and sentence criminals, but the function of executive power is to carry out judgements. When the President exercises his pardoning power and evaluates the information in the criminal case file to reach different conclusions about the defendant’s guilt and sentence, he shall not manipulate, change, or replace judicial documents in any manner.
The honourable court’s decision is still in effect. Under constitutional authority, the president has what is known as “benevolent jurisdiction.” This power exists on a different level and is distinct from the judiciary; the former cannot be seen as an extension of the latter. As a result, the act of lessening the sentence by a presidential pardon is an exercise of executive authority, restricting the judicial department’s judgement but not fully removing it.
But does this entail that the administrative power to award pardons is unlimited and not susceptible to judicial oversight? The ruling noted a number of earlier Supreme judicial opinions that successfully sought to determine whether the president’s decision’s character and subject matter were appropriate for judicial proceedings. In Maru Ram v. Federation of India, the Supreme Court stated that Article 72 “should not be exercised arbitrarily, maliciously, or in complete disregard of the highest constitutional standards.” If the byproduct is not legally recognised, you should contact the judiciary.
The Supreme Court ruled in Kehar Singh v. Union of India[10] that when the president displays administrative leniency, he can learn the merits of the case even though the Supreme Court has already rendered a judicial verdict. The President’s order, on the other hand, may only be susceptible to court review on its merits within the narrow parameters set in the Maru Ram case.
As a result, it can be demonstrated in all of the given examples that the court can perform judicial review of the presidential pardon to redress unfair or arbitrary judgements. The breadth, however, is restricted. Only after the order has been authorised do the judiciary’s powers come into play, a.) Inadvertent application; b.) Failure to follow the Council of Ministers’ recommendations c.) dishonesty; d.) e.) Relevant materials are excluded; and f.) Arbitrary materials.
Judge Passayat noted Sir William Wade’s, a well-known academic lawyer, view and verified that the wide range of words in Article 72 cannot establish the exact conditions for using this authority due to facts and unique instances. case.
The notion that authority should be utilised responsibly, on the other hand, should be compatible with the doctrine that the court should not usurp the president’s discretion in pardons. Only within the framework of legal logic can the president use true discretion. Please take ultra vires action if you violate these limits. Only in certain situations will the court step in and provide judicial review.
When the legal principles were reviewed in the context of the facts, it is evident that unnecessary and extraneous items entered the decision-making process, so vitiating it.
The remission order challenged in the petition is manifestly untenable and is overturned. However, respondent No.1 may treat the petition as pending for the purpose of re-consideration. The Governor shall have the authority to take notice of materials put before him by State authorities, as well as to make such inquiries as he deems necessary and pertinent for the purpose of establishing the relevant factors otherwise.
Conclusion:
The judicial assessment of the pardoning authority is a typical example of how law evolves via judicial interpretation. Beginning with severe reluctance to even investigate the issue, the tendency has now changed to a more balanced and middle road approach. To clarify their role in instances of review, the courts have mostly agreed on the judgement in Maru Ram’s case and the constraints provided therein. There is agreement that the court cannot consider the decision’s merits unless in circumstances of arbitrariness, malice, or ignorance of certain important facts.
Although the courts have crossed the fine line that limits the extent of their review, as spelled forth in Maru Ram’s case, such situations are regarded as outliers. These should be ignored since the Court has deviated very little from the course outlined in the Maru Ram decision.
Thus, in the words of Pathak, C.J., “in any civilised society, there can be no attributes more important than the life and personal liberty of its members”[11], and the President’s and Governor’s pardoning authority is one such function that assures the same. This authority is therefore an essential and vital aspect of the Constitution, and it is desired that its custodians execute it in a just and impartial manner, and that the judiciary continues to function as a watchdog in such circumstances.
[1] Art. 72, the Constitution Of India.
[2] Art. 161, the Constitution Of India.
[3] S. 302, The Indian Penal Code, 1860.
[4] S. 304(1), The Indian Penal Code, 1860.
[5] S. 109, The Indian Penal Code, 1860.
[6] Khan Ahmad Darvesh, Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, https://lawfoyer.in/epuru-sudhakar-anr-vs-govt-of-a-p-ors/
[7] Arijit Pasayat, Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors on 11 October, 2006, https://indiankanoon.org/doc/758562/
[8] Art. 72(2), the Constitution of India.
[9] Art. 161(1), the Constitution of India.
[10] 1989 (1) SCC 204
[11] Kehar Singh v. Union of India MANU/SC/0240/1988: AIR 1989
This article is written by Tanaya Devadhe of ILS Law College, an intern under Legal Vidhiya
