& Anr Vs. Govt. of A.P. & Ors  Insc 641 (11 October 2006)
H. Kapadia Kapadia, J.
I respectfully agree with the conclusion containing the opinion of brother, Arijit
Pasayat, the importance and intricacies of the subject matter, namely, judicial
review of the manner of exercise of prerogative power has impelled me to
elucidate and clarify certain crucial aspects. Hence this separate opinion.
reprieves and remissions are manifestation of the exercise of prerogative power.
These are not acts of grace. They are a part of Constitutional scheme. When a
pardon is granted, it is the determination of the ultimate authority that
public welfare will be better served by inflicting less than what the judgment
to grant pardons and reprieves was traditionally a Royal prerogative and was
regarded as an absolute power. At the same time, even in the earlier days,
there was a general rule that if the King is deceived, the pardon is void,
therefore, any separation of truth or suggestion of falsehood vitiated the
pardon. Over the years, the manifestation of this power got diluted.
power to grant pardons and reprieves in India is vested in the President and the Governor of a State by virtue of
Articles 72 and 161 of the Constitution respectively.
of Executive clemency is a matter of discretion and yet subject to certain
standards. It is not a matter of privilege. It is a matter of performance of
official duty. It is vested in the President or the Governor, as the case may
be, not for the benefit of the convict only, but for the welfare of the people
who may insist on the performance of the duty. This discretion, therefore, has
to be exercised on public consideration alone. The President and the Governor are
the sole judges of the sufficiency of facts and of the appropriating of
granting the pardons and reprieves. However, this power is an enumerated power
in the Constitution and its limitations, if any, must be found in the
Constitution itself. Therefore, the principle of Exclusive Cognizance would not
apply when and if the decision impugned is in derogation of a Constitutional
provision. This is the basic working test to be applied while granting pardons,
reprieves, remissions and commutation.
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 punishment for a
crime. It eliminates the effect of conviction without addressing the defendants
guilt or innocence. The controlling factor in determining whether the exercise
of prerogative power is subject to judicial review is not its source but its
subject matter. It can no longer be said that prerogative power is ipso facto
immune from judicial review. An undue exercise of this power is to be deplored.
Considerations of religion, caste or political loyalty are irrelevant and
fraught with discrimination. These are prohibited grounds. Rule of Law is the
basis for evaluation of all decisions.
supreme quality of the Rule of Law is fairness and legal certainty. The
principle of legality occupies a central plan in the Rule of Law. Every
prerogative has to be the subject to the Rule of Law. That rule cannot be
compromised on the grounds of political expediency. To go by such
considerations would be subversive of the fundamental principles of the Rule of
Law and it would amount to setting a dangerous precedent. The Rule of Law
principle comprises a requirement of "Government according to law".
The ethos of "Government according to law" requires the prerogative
to be exercised in a manner which is consistent with the basic principle of
fairness and certainty. Therefore, the power of executive clemency is not only
for the benefit of the convict, but while exercising such a power the President
or the Governor, as the case may be, has to keep in mind the effect of his
decision on the family of the victims, the society as a whole and the precedent
it sets for the future.
power under Article 72 as also under Article 161 of the Constitution is of the
widest amplitude and envisages myriad kinds and categories of cases with facts
and situations varying from case to case. The exercise of power depends upon
the facts and circumstances of each case and the necessity or justification for
exercise of that power has to be judged from case to case. It is important to
bear in mind that every aspect of the exercise of the power under Article 72 as
also under Article 161 does not fall in the judicial domain. In certain cases,
a particular aspect may not be justiciable. However, even in such cases there
has to exist requisite material on the basis of which the power is exercised
under Article 72 or under Article 161 of the Constitution, as the case may be.
In the circumstances, one cannot draw the guidelines for regulating the
exercise of the power.
stated above, exercise or non-exercise of the power of pardon by the President
or the Governor is not immune from judicial review. Though, the circumstances
and the criteria to guide exercise of this power may be infinite, one principle
is definite and admits of no doubt, namely, that the impugned decision must
indicate exercise of the power by application of manageable standards and in
such cases courts will not interfere in its supervisory jurisdiction. By
manageable standards we mean standards expected in functioning democracy. A
pardon obtained by fraud or granted by mistake or granted for improper reasons
would invite judicial review. The prerogative power is the flexible power and
its exercise can and should be adapted to meet the circumstances of the
particular case. The Constitutional justification for judicial review, and the
vindication of the Rule of Law remain constant in all areas, but the mechanism
for giving effect to that justification varies.
conclusion, it may be stated that, there is a clear symmetry between the
Constitutional rationale for review of statutory and prerogative power. In each
case, the courts have to ensure that the authority is used in a manner which is
consistent with the Rule of Law, which is the fundamental principle of good
administration. In each case, the Rule of Law should be the overarching
constitutional justification for judicial review. The exercise of prerogative
power cannot be placed in straight jacket formulae and the perceptions
regarding the extent and amplitude of this power are bound to vary. However,
when the impugned decision does not indicate any data or manageable standards,
the decision amount to derogation of an important Constitutional principle of
Rule of Law.
appreciate the assistance rendered by Mr. Soli J. Sorabjee as amicus curiae in
these words, I agree with the conclusions in the opinion of brother, Arijit Pasayat.