Pardoning Power

Pardoning Power
Dr Avinash Bhagi
Assitant Professor of Law
Gujarat National Law University
Important Cases
• Cases highlighted in red are must read cases.
• K.M.Nanavati v. State of Bombay, AIR 1961 SC112

• Maru Ram v. Union of India, AIR 1980 SC 2147
• Sarat Chandra Rabha v. Khagendranath Nath AIR 1961 SC 334
• Kehar Singh v. Union of India, AIR 1989 SC 653
• Swaran Singh v. State of U.P. [1998 (4) SCC 75]
• Satpal v. State of Haryana [2000 (5) SCC 170]
• Epuru Sudhakar v. Govt. of A.P. AIR 2006 SC 3385
• Devendra Pal Singh Bhullar v. State (NCT) of Delhi,(2013) 6 SCC195
• Shartuhan Chauhan v. Union of India, Jan 21, 2014
• Navneet Kaur v. State of NCT of Delhi, March 31 2014
• V. Sriharan@Murugan v Union of India, Feb 18 2014
• Union of India v. V. Sriharan@Murugan, 2 Dec 2015
• Kuljit Singh @ Ranga v. Lt. Governor of Delhi, decided on 20/01/1982
• Dhananjoy Chatterjee alias Dhana v. State of West Bengal, decided on 26/03/2004
• Yakub Abdul Razak Memon v. State of Maharashtra, July 30, 2015
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 passed by a Court
Martial.
(3) Nothing in sub-clause (c) 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."
Art. 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 Stale extends.
Important words
1. Pardon
– A pardon completely absolves the offender from all sentences and punishments and
disqualifications and places him in the same position as if he had never committed the offence.
– Section 321 Cr.P.C
2. Commutation means change to a lighter penalty of a different form.
– S. 433 & 416 of Cr.P.C
– S. 54 & 55 of I.P.C
3. Remission means reducing the amount of sentence without changing the
character of punishment.
– Section 432 of Cr.P.C
4. Respite means awarding a lesser punishment
– S. 360 of Cr.P.C
5. Reprieve
– Reprieve means a stay of the execution of a sentence or of the enforcement of a penalty, for a
temporary period. It means a temporary Stay of execution or suspension of a sentence for the
time being.
Section 416 of Cr.P.C
6. Suspension
– While remission reduces the quantum of a sentence, suspension merely stays execution
thereof.
– Section 432 Cr.P.C
– Section 389 Cr.PC
Object of the Pardoning Power
• To correct judicial errors, for no human system of judicial
administration can be free from imperfections.
• There are many matter which may not have been considered by
courts. The hands of the courts are tied down by the evidence
place before it.
• Law commission of India Report on Capital Punishment, 1967

• A sentence of death passed by a court after consideration of all
materials placed before it may yet require reconsideration because
of:
1. facts not placed before the court;
2. fact placed before court, but not in the proper manner;
3. facts discovered after passing the sentence;
4. events which have developed after passing of the sentence;
5. and other special features.
Limitations on Pardoning Power
Could the following be considered as limitation on Pardoning
Power of the President?
• Article 72
• When the matter is sub judice
• Legislature
• Council of Ministers
• Judicial Review
• Guidelines etc.
K.M.Nanavati
v.
State of Bombay
AIR 1961 SC112
Judges
SINHA,BHUVNESHWARP(CJ)
GAJENDRAGADKAR, P.B.,
SUBBARAO, K.,
WANCHOO, K.N.
KAPUR, J.L.( Dissenting Judge)
K.M.Nanavati v. State of Bombay, AIR 1961 SC112
• Issues
• What is the content of the power conferred on
the Governor of a State under Art. 161 of the
Constitution ; and
• Whether the order of the Governor of Bombay
dated March 11, 1960, impinges on the judicial
powers of this Court, with particular reference
to its powers under Art. 142 of the Constitution.
• K.M.Nanavati (Petitioner) was arrested in connection with a charge of murder
under s. 302 of the Indian Penal Code.
• He was produced before the Additional Chief Presidency Magistrate, Greater
Bombay.
• The Magistrate remanded him to police custody on that day.
• The Magistrate, on the request of the Flag Officer, made the order directing that
the accused should be detained in the Naval Jail and Detention Quarters in
Bombay.
• The petitioner continued to remain in naval custody all along.
• In due course, he was placed on trial before the Sessions Judge, Greater Bombay.
• The trial was by a jury.
• The jury returned a verdict of 'not guilty' by a majority of eight to one.
• The learned Sessions Judge disagreeing with the verdict of the jury referred
the matter to the High Court.
• The High Court accepted the reference and convicted the petitioner under
s. 302 of the Indian Penal Code and sentenced him to imprisonment for
life.
• On the same day, the Governor of Bombay passed the following order:-
" In exercise of the powers conferred on me by Article 161 of the
Constitution of India, 1, Shri Prakasa, Governor of Bombay, am Pleased
hereby to suspend the sentence passed by the High Court of Bombay on
Commander K. M.Nanavati in Sessions Case go. 22 of IV th Sessions of
1959 until the appeal intended to be filed by him in the Supreme Court
against his conviction and sentence is disposed of and subject meanwhile to
the conditions that he shall be detained in the Naval Jail Custody in 1. N. S.
Kunjali".
• In pursuance of the judgment of the High Court, a writ issued to the Sessions
Judge, Greater Bombay, communicating the order of the High Court convicting
and sentencing the petitioner.
• The Sessions Judge issued a warrant for the arrest of the accused and sent it to the
police officer for execution.
• The warrant was returned unserved with the report that the warrant could not be
served in view of the order passed by the Governor of Bombay suspending the
sentence upon the petitioner.
• The Sessions Judge then returned the writ together with the unexecuted warrant to
the High Court.
• Petitioner filed Special Leave Petition along with exemption

application
• In the meantime an application for leave to appeal to the Supreme Court was made
soon after the judgment was pronounced by the High Court.
• The petitioner filed petition for special leave and also made an application under 0.
XLV, r. 2 and 5 of the Supreme Court Rules for exemption from compliance with 0.
XXI, r. 5, of those Rules.
• Rule 5 of 0. XXI of the Rules of this Court was framed under Art. 145 and is in these
terms:-
• "Where the- petitioner has been sentenced to a term of imprisonment, the petition shall state
whether the petitioner has surrendered. Unless the Court otherwise orders, the petition shall
not be posted for hearing until the petitioner has surrendered to his sentence.“
• Reasons given by the Petitioner seeking exemption from Rule 5
• It was stated in the petition that, soon after his arrest, the petitioner throughout the trial before
the Sessions Court and the hearing of the reference in the High Court, had been in naval
custody and continued to be in that custody, that he had been throughout of good behavior and
was ready and willing to obey any order of this Court, but that the petitioner " not being a free
man it was not possible for him to comply with the requirements of r. 5 of 0. XXI of the
Supreme Court Rules. He, therefore, prayed that he may be exempted from compliance with the
aforesaid rule and that his petition for special leave to appeal be posted for hearing without his
surrendering to his sentence.
• Division Bench referred the matter before the Constitution Bench
• On April 25, 1960, the special leave petition along with the application for exemption aforesaid was placed before
a Division Bench which referred the matter before the Constitutional Bench with the following order:
• "This is a petition for special leave against the order passed by the Bombay High Court on reference, convicting the
petitioner under s.302 of the Indian Penal Code and sentencing him to imprisonment for life. Along with his petition for
special leave an application has been filed by the petitioner praying that he may be exempted from surrendering under
0.XXI, r. 5, of the Rules of this Court. His contention in this application is that he is ready and willing to obey any order
that this Court may pass but that as a result of the order passed by the Governor of Bombay under Art. 161 of the
Constitution he is not a free man to do so and that is put forward by him as an important ground in support of his plea
that he may be exempted from complying with the relevant rule of this Court. This plea immediately raises an
important constitutional question about the scope and extent' of the powers conferred on the Governor under
Art. 161 of the Constitution and that is a constitutional matter which has to be heard by a Constitution
Bench of this Court.
• Petitioner’s Affidavit before the Five Judges Bench

• After the aforesaid order of this Court, it appears that on July 6, the petitioner
swore an affidavit in Bombay to the effect that his application aforesaid for
exemption from compliance with the requirements of r. 5 of 0. XXI of the Rules
had been made under a misapprehension of the legal position and that the true
position had been indicated in the judgment of the Special Bench of the
Bombay High Court to the effect that r. 5 of 0. XXI of the Rules would not
apply to his case in view of the Governor's order aforesaid and that,
therefore, his special leave petition be directed to be listed for admission.
• The decision of this petition depends upon the nature, effect, extent and
operation of the powers conferred by Arts. 142(1), 145 and 161 of the
Constitution; how they are to be construed and how and to what extent, if
any, they are in conflict or in accord with each other.
Whether the order of suspension passed by the
Governor under Article 161 could operate, when this
Court had been moved for granting special leave to
appeal from the judgment and order of the High
Court?
• Petitioner Contention
• Though this Court has the power to suspend sentence or grant bail pending hearing of the
special leave petition that would not affect the power of the executive to grant a pardon.
• MR. SEERVAI
• There could never be a conflict between the exercise of the power by the Governor under
Art. 161 and by this Court under Art. 142 because the power under Art. 161 is executive
power and the power under Art. 142 is judicial power and the two do not act in the same
field. That in our opinion is over-simplification of the matter.
• Power of granting pardon is wide and absolute and can be exercised at any time, that is to
say, it can be exercised even in respect of criminal matters which are sub judice;
• Power to suspend sentence is part of the larger power to grant pardon, and is similar in
character and can be similarly exercised.
Supreme Court held
• We have come to the conclusion that
• the order of the Governor granting suspension of the sentence could only operate
until the matter became sub judice in this Court on the filing of the petition for
special leave to appeal.
• After the filing of such a petition this Court was seized of the case which would be
dealt with by it in accordance with law.
• Governor had no power to grant the suspension of sentence for the period
during which the matter was sub judice in this Court.
• Art. 161 contains no words of limitation; in the same way, Art. 142 contains no
words of limitation and in the fields covered by them they are unfettered.
• But if there is any field which is common to both, the principle of harmonious
construction will have to be adopted in order to avoid conflict between the two
powers.
• It will be seen that the ambit of Art. 161 is very much wider and it is only in a very
narrow field that the power contained in Art. 161 is also contained in Art. 142,
namely, the power of suspension of sentence during the period when the matter is
sub-judice in this Court.
Supreme Court held
• Therefore on the principle of harmonious construction and to avoid
a conflict between the two powers it must be held that Art. 161 does
not deal with the suspension of sentence during the time that Art.
142 is in operation and the matter is sub-judice in this Court.
• As soon as the petitioner put in a petition for special leave to appeal

the matter became sub-judice in this Court.
• This Court under its Rules could insist upon the petitioner
surrendering to his sentence as a condition precedent to his being
heard by this Court, though this Court could dispense with and in a
proper case could exempt him from the operation of that rule.
MARU RAM V. Union Of India
AIR 1980 SC 2147
Judges
KRISHNAIYER, V.R.
CHANDRACHUD, Y.V. ((CJ)
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
KOSHAL, A.D.
The Constitutional Validity of Section 433A of
Cr.P.C which was inserted in 1978 was
challenged.
Rules of Remission and Release
Before 1978
MARU RAM V. UNION OF INDIA , AIR 1980 SC 2147
• The rules of remission and release were

common for all prisoners.
• Lifers were treated, in the matter of
remissions and release, like other sentenced
to life for lesser offences which do not carry
death penalty.
S.433-A. Restriction on powers of remission or
commutation in certain cases
• “Notwithstanding anything contained in section 432,
• where a sentence of imprisonment for life is imposed on
conviction of a person for an offence for which death is one of
the punishment provided by law,
or
• where a sentence of death imposed on a person has been
commuted under section 433 into one of imprisonment for life,
• such person shall not be released from prison unless he had
served at least fourteen years of imprisonment.”
MARU RAM V. UNION OF INDIA , AIR 1980 SC 2147
• Rules of remission and release After 1978

• Actual detention in prison for full fourteen years becomes
mandatory in minimum two classes of cases.
• Section 433A effects two categories of Prisoners

• 1. Where a sentence of imprisonment for life is imposed on
conviction of a person for an offence for which death is one
of the punishment provided by law
• 2. Where a sentence of death imposed on a person has
been commuted under section 433 into one of
imprisonment for life
Issues Before the Supreme Court of India
Issues Before the Supreme Court of India
• Grounds of challenge
• Violation of Articles 72 and 161
• Section 433-A violated Article 14 being wholly arbitrary and irrational
• Section 433-A lacked legislative competency under the Lists.
• Contravention of Article 20(1) of the Constitution
• Issues related to Pardoning Power

1. Is Article 72/161 subject to Section 433A of Cr.P.C ?
2. Aid & Advice of Ministers
3. Need for Guidelines
4. Scope of Judicial Review
5. What is the jural consequences of a remission of sentence?
Issue No. 1
Is Article 72/161 subject to Section 433A of Cr.P.C ?
Is Article 72/161 subject to Section 433A of Cr.P.C ?
• Constitutional powers under Arts. 72 and 161 are 'untouchable'

and 'unapproachable' for any legislature.
• Arts. 72 and 161 are beyond any legislative power to curb or

confine.
• S. 433A does not and cannot affect even a wee-bit the pardon
power of the Governor or the President.
• Cooley has rightly indicated that 'where the pardoning power is

vested exclusively in the (top executive) any law which restricts
the power is unconstitutional'.
Issue No. 2
Aid & Advice of Ministers
• The power under Articles 72 and 161 of the Constitution can be

exercised by the Central and State Governments, not by the
President or Governor on their own.
• It is not open either to the President or the Governor to take

independent decision or direct release or refuse release of any
one of their own choice.
• The subject is now beyond controversy, this court having

authoritatively laid down the law in Shamsher Singh's case.
• So, we agree, that, in the matter of exercise of the powers
under Arts. 72 and 161, the two highest dignitaries in our
constitutional scheme act and must act not on their own
judgment but in accordance with the aid and advice of the
ministers. Article 74, after the 42nd Amendment silences
speculation and obligates compliance.
• The Governor vis a vis his Cabinet is no higher than the

President save in a narrow area which does not include Art.
161.
• The Constitutional conclusion is that the Governor is but a

shorthand expression for the State Government and the
President is an abbreviation for the Central Government.
Issue No. 3
Need for Guidelines
Need for Guidelines – Please see page 38
• All public power, including constitutional power, shall never be exercisable arbitrarily or
mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid
play of power.
• Wide as the power of pardon, commutation and release (Arts. 72 and 161) is, it cannot run
riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly
to a steady course.
• The proper thing to do, if Government is to keep faith with the founding fathers, is to
make rules for its own guidance in the exercise of the pardoning power keeping, of course,
a large residuary power to meet special situations or sudden developments.
• This will exclude the vice of discrimination such as may arise where two persons have been
convicted and sentenced in the same case for the same degree of guilt but one is released
and the other refused, for such irrelevant reasons as religion, caste, colour or political
loyalty.
• We have no hesitation to reject the notion that Arts. 72/161 should remain uncanalised.
Need for Guidelines
• We have to direct the provisional acceptance of the remission and short-
sentencing schemes as good guidelines for exercise of pardon power.
• WE STRONGLY SUGGEST THAT, without break, the same rules and schemes
of remission be continued as a transmigration of soul into Art. 161.
• The wide power of executive clemency cannot be bound down even by self-
created rules.
• We regard it as fair that until fresh rules are made in keeping with experience
gathered, current social conditions and accepted penological thinking- a desirable
step, in our view-the present remission and release schemes may usefully be taken
as guidelines under Articles 72/161 and orders for release passed.
• We cannot fault the Government, if in some intractably savage delinquents, s.

433A is itself treated as a guideline for exercise of Articles 72/161.
• These observations of ours are recommendatory to avoid a hiatus, but it is for

Government, Central or State, to decide whether and why the current Remission
Rules, should not survive until replaced by a more wholesome scheme.
Scope of Judicial Review See page 38
• The court, if it finds frequent misuse of this power may have to

investigate the discrimination.
• Considerations for exercise of power under Articles 72/161

may be myriad(countless) and their occasions protean
(variable), and are left to the appropriate Government, but no
consideration nor occasion can be wholly
• irrelevant,
• irrational,
• discriminatory or
• mala fide.
• Only in these rare cases will the court examine the exercise.
5. What is the jural consequence of a remission of sentence?
What is the jural consequence of a remission of sentence?
• Once a sentence has been imposed, the only way to terminate it before the
stipulated term is by action under Sections 432/433 or Articles 72/161.
• Sarat Chandra Rabha and Ors.Vs. Khagendranath Nath and Ors.
AIR1961SC334
• Effect
• Executive cannot alter the sentence itself.
• An order of remission does not wipe out the offence; it also does not wipe out the
conviction.
• All that it does is to have an effect on the execution of the sentence; though
ordinarily a convicted person would have to serve out the full sentence imposed by
a court, he need not do so with respect to that part of the sentence which has been
ordered to be remitted.
• An order of remission does not in any way interfere with the order of the court; it
affects only, the execution of the sentence passed by the court and frees the
convicted person from his liability to undergo the full term of imprisonment
inflicted by the court, though the order of conviction and sentence passed by the
court still stands as it was.
About Sec 433A
• S. 433A as introduced with effect from 18-12-1978 is constitutionally valid.
• S. 433A in both its limbs is prospective in effect.
• The mandatory minimum of 14 years actual imprisonment will not operate against those
whose cases were decided by trial court before the 18th December , 1978.
• S. 433A is supreme over the remission rules and short sentencing, statutes made by the
various states.
• S. 433A does not forbid parole or other release within the 14 year span.
• Parliament has a legislative competency to enact the provisions in S. 433A.
• Article 246(2) gives power to the Parliament to make laws with respect to any of the
matters enumerated in list III.
• Entries 1 & 2 in list III are abundantly comprehensive to cover legislation such as is
contained in S. 433A, which merely enacts a rider, as it were, to section 432 and 433(a).
• A legislation on the topic of ‘prisoners and prisoners’ cannot be read into section 433A.
• The power of the state to enact laws of remission and short sentencing under Entry 4 of
List II is subject to Articles 246(1) & (2) and so Parliamentary legislation prevails over
state legislation.
• S. 433A does not contravene the provisions of Article 20(1).
• S. 433A does not violate Article 72 & 161.
Kehar Singh
v.
Union of India
AIR 1989 SC 653
Coram : 5
R. S. PATHAK, C.J.I.,
E. S. VENKATARAMIAH,
RANGANATH MISRA,
M. N. VENKATACHALIAH AND
N. D. OJHA, JJ.
Facts
• [Beant Singh short on the spot, Satwant Singh along with Kehar Singh hanged on 6 January 1989]
• Kehar Singh was convicted of an offence under S. 120-B read with S. 302 of the
Indian Penal Code in connection with the assassination of Smt. Indira Gandhi on
31st October, 1984.
• Sentenced to death by the Additional Sessions Judge, New Delhi.
• APPEAL dismissed by the High Court
• APPEAL BY SPECIAL LEAVE was dismissed on 3rd August, 1988.
• A REVIEW PETITION filed thereafter by Kehar Singh was dismissed on 7th

September, 1988.
• WRIT PETITION was also dismissed by Supreme Court.

Facts
• MERCY PETITITON
• On 14th October, 1988 his son, Rajinder Singh, presented a mercy
petition to the President of India for the grant of pardon to Kehar
Singh under Art. 72 of the Constitution.
• In that petition reference was made to the evidence on the record of

the criminal case and it was sought to be established
that Kehar Singh was innocent, and that the verdict of the Courts
that Kehar Singh was guilty was erroneous.
• The petition included a prayer that Kehar Singh's representative may

be allowed to see the President in person in order to explain the case
concerning him.
• On 23 October, 1988 counsel for Kehar Singh wrote to the President

requesting an opportunity to present the case before him and for the grant
of a hearing in the matter.
Facts
• A letter dated 31 October, 1988 was received from the Secretary to the
President referring to the 'mercy petition' and mentioning that in
accordance with "the well established practice in respect of consideration
of mercy petitions, it has not been possible to accept the request for a
hearing".
• On 3 November, 1988 a further letter was addressed to the President by counsel

refuting the existence of any practice not to accord a hearing on a petition under
Article 72 and requesting him to re-consider his decision to deny a hearing.
• On 15 November, 1988 the Secretary to the President wrote to counsel as

follows:
• Reference is invited to your letter dated November 3, 1988 on the subject
mentioned above. The letter has been perused by the President and its contents
carefully considered. The President is of the opinion that he cannot go into
the merits of a case finally decided by the Highest Court of the Land.
• Thereafter, the President rejected the petition under Art. 72, and on 24th
November, 1988 Kehar Singh was informed of the rejection of the petition.
Facts
• His son, Rajinder Singh came to know on 30th November, 1988 from the
newspaper media that the date of execution of Kehar Singh had been fixed
for 2nd December, 1988.
• The next day, 1st December, 1988 he filed a petition in the High Court of
Delhi praying for an order restraining the respondents from executing the
sentence of death, and on the afternoon of the same day the High Court
dismissed the petition.
• Immediately upon dismissal of the writ petition, counsel moved this Court
and subsequently filed Special Leave Petition before SC along with Writ
Petitions under Art. 32 of the Constitution.
• During the preliminary hearing late in the afternoon of the same day, 1st
December, 1988 the Supreme Court decided to entertain the writ petition
and made an order directing that the execution of Kehar Singh should not
be carried out meanwhile.
Issues before the Supreme Court
Issues before the Supreme Court
• Can President scrutinize the evidence on record of the
criminal case and come to a different conclusion?
• To what extent the power of President to scrutinize extends?
• Whether judicial review extends to an examination of the order

passed by the President under Article 72 of the Constitution?
• Whether the petitioner is entitled to an oral hearing from the

President on his petition invoking the powers under Art. 72?
• Need of guidelines
Object of Pardoning Power
• To any civilised society, there can be no attributes more important than the life
and personal liberty of its members. That is evident from the paramount position
given by the Courts to Article 21 of the Constitution. These twin attributes enjoy
a fundamental ascendancy(dominance) over all other attributes of the political and
social order, and consequently, the Legislature, the Executive and the Judiciary are
more sensitive to them than to the other attributes of daily existence. The
deprivation of personal liberty and the threat of the deprivation of life by the
action of the State is in most civilised societies regarded seriously and recourse,
either under express constitutional provision or through legislative enactment, is
provided to the judicial organ. But, the fallibility(imperfection) of human
judgment being undeniable even in the most trained mind, a mind
resourced by a harvest of experience, it has been considered appropriate
that in the matter of life and personal liberty, the protection should be
extended by entrusting power further to some high authority to scrutinise
the validity of the threatened denial of life or the threatened or continued
denial of personal liberty.
England and United States
• All power belongs to the people, and it is entrusted by them to specified institutions
and functionaries with the intention of working out, maintaining and operating a
constitutional order.
• The power so entrusted is a power belonging to the people and reposed in the highest
dignitary of the State.
• In England, the power is regarded as the royal prerogative of pardon exercised by the
Sovereign, generally through the Home Secretary. It is a power which is capable of
exercise on a variety of grounds, for reasons of State as well as the desire to
safeguard against judicial error. It is an act of grace issuing from the Sovereign.
• In the United States, however, after the founding of the Republic, a pardon by the
President has been regarded not as a private act of grace but as a part of the
constitutional scheme. In an opinion, remarkable for its erudition and clarity, Mr. Justice
Holmes, speaking for the Court in W.I. Biddle v. Vuco Perovich 71 L. Ed. 1161,
enunciated this view, and it has since been, affirmed in other decisions. The power to
pardon is a part of the constitutional scheme, and we have no doubt, in our mind,
that it should be so treated also in the Indian Republic. It has been reposed by the
people through the Constitution in the Head of the State, and enjoys high status. It is
a constitutional responsibility of great significance, to be exercised when occasion
arises in accordance with the discretion contemplated by the context.
Aid & Advice
• It is not denied, and indeed it has been repeatedly affirmed in the
course of argument by learned Counsel, Shri Ram Jethmalani and
Shri Shanti Bhushan, appearing for the petitioners that the power to
pardon rests on the advice tendered by the Executive to the
President, who subject to the provisions of Article 74(1) of the
Constitution, must act in accordance with such advice. We may
point out that the Constitution Bench of this Court held in
Maru Ram v. Union of India MANU/SC/0159/1980 :
1980CriLJ1440 , that the power under Article 72 is to be
exercised on the advice of the Central Government and not by
the President on his own, and that the advice of the
Government binds the Head of the State.
Issues 1
Can President scrutinize the evidence on record of the
criminal case and come to a different conclusion?
• Whether there is justification for the view that when exercising his powers under Article 72 the
President is precluded from entering into the merits of a case decided finally by this Court.
• We are of the view that it is open to the President in the exercise of the power vested in him by Art.
72 of the Constitution to scrutinize the evidence on the record of the criminal case and come to a
different conclusion from that recorded by the Court in regard to the guilt of, and sentence imposed
on the accused.
• In doing so, the President does not amend or modify or supersede the judicial record remains intact,
and undisturbed.
• The President acts in a wholly different plane from that in which the Court acted.
• He acts under a constitutional power, the nature of which is entirely different from the judicial power
and cannot be regarded as an extension of it.
• And this is so notwithstanding that the practical effect of the Presidential act is to remove the stigma
of guilt from the accused or to remit the sentence' imposed on him.
• Conclusion: Power under Article 72 entitles the President to examine the record of evidence of the
criminal case and to determine the record of evidence of the criminal case and to determine for
himself whether the case is one deserving the grant of the relief falling within that power.
• We are of the opinion that the president is entitled to go into the merits of the case notwithstanding
that it has been judicially concluded by the consideration given to it by this court.
Issue 2
Whether judicial review extends to an examination of the
order passed by the President under Article 72 of the
Constitution?
• President's power under Art. 72 falls squarely within the judicial

domain and can be examined by the Court by way of judicial
review.
• President’s order under Article 72 cannot be subjected to

judicial review on its merits except within the strict limitations
defined in Maru Ram v. Union of India.
Issue 3
Whether the petitioner is entitled to an oral hearing from the President on
his petition invoking the powers under Art. 72?
• There is no right in the condemned person to insist on an oral hearing before the
President.
• He has no right to insist on presenting an oral argument.
• The proceeding before the President is of an executive character, and when the
petitioner files-his petition it is for him to submit with it all the requisite
information necessary for the disposal of the petition.
• The manner of consideration of the petition lies within the discretion of the
President, and it is for him to decide how best he can acquaint himself with all the
information that is necessary for its proper and effective disposal.
• The President may consider sufficient the information furnished before him in the
first instance or he may send for further material relevant to the issues which he
considers pertinent, and he may, if he considers it will assist him in treating with
the petition, give an oral hearing to the parties.
• The matter lies entirely within his discretion.

Issue 4
Need of guidelines
• Petitioners Contention regarding framing of guidelines
• In order to prevent an arbitrary ,exercise of power under Art.72 this
Court should draw up a set of guidelines for regulating the exercise
of the power.
• Supreme Court held

• It seems to us that there is sufficient indication in the terms of
Art.72 and in the history of the power enshrined in that provision as
well as existing case law, and specific guidelines need not be spelled
out.
• Indeed, it may not be possible to lay down any precise, clearly

defined and sufficiently channelized guidelines.
• The power under Art. 72 is of the widest amplitude, can contemplate

a myriad kinds and categories of cases with facts and situations
varying from case to case…
Final Order
• In the result, having regard to the view taken

by us on the question concerning the area
and scope of the President's power under Art.
72 of the Constitution, we hold that the
petition invoking that power shall be, deemed
to be pending before the President to be dealt
with and disposed of afresh. The sentence of
death imposed on Kehar Singh shall remain
in abeyance meanwhile.
Epuru Sudhakar
vs
Govt. of A.P.
AIR 2006 SC 3385
Epuru Sudhakar vs Govt. of A.P. AIR 2006 SC 3385
• Writ Petition under Article 32
• What was challenged?
• An 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.
• Facts of the Case
• Petitioner No. 1 -Son of late Sh. Epuru Chinna Ramasubhaiah who was murdered
along with one Ambi Reddy on 19.10.1995.
• Petitioner No. 2-Son of one late Sh. Tirupati Reddy who was allegedly murdered by
respondent No. 2 (Gouru Venkata Reddy) while he was on bail in the murder case
of father of petitioner No. 1.
Order of the Supreme Court
• 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 (in short the 'IPC')
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.
• Wife’s representation of grant of Parole-granted and its

cancellation
• 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.
Contested and won the AP Leg. Elections
• Respondent No.3 contested the election to the Andhra Pradesh Assembly Election and
on 12.5.2004 was elected as member of Legislative Assembly.
Representation for grant of parole and granted and extended from time to time
• 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.
Representation to Governor under article 161
• 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.
Remission granted by Governor
• 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.
Petitioner’s contention
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.
• Soli J Sorabjee to act as Amicus Curiae
• He suggested that considering the frequency with which pardons and/or
the remission are being granted, in the present political scenario of the
country it would be appropriate for this Court to lay down guidelines so
that there is no scope for making a grievance about the alleged misuse of
power.
• Learned counsel for the respondents on the other hand submitted that
though in Maru Ram v. Union of India & Others [1981 (1) SCC 107] this
Court had indicated certain recommendatory guidelines, the same did not
find acceptance in Kehar Singh and Another v. Union of India and
Another [1989(1) SCC 204]. As a matter of fact in a later decision in
Ashok Kumar @ Golu v. Union of India and Ors. (1991 (3) SCC 498)
the alleged apparent inconsistencies in the view was highlighted and a 3-
Judge Bench held that laying down guidelines would be inappropriate.
• Section 295 of Government of India Act, 1935

• The provision corresponding to Article 72 in the Government of India Act 1935 (in
short 'the Government Act') was Section 295 which reads as follows:
• "(1) Where any person has been sentenced to death in a Province, the Governor-
General in his discretion shall have all such powers of suspension, remission or
commutation of sentence as were vested in the Governor-General in Council
immediately before the commencement of Part III of this Act, but save as aforesaid
no authority in India outside a Province shall have any power to suspend, remit or
commute the sentence of any person convicted in the Province.
• Provided that nothing in this sub-section affects any powers of any officer of His
Majesty's forces to suspend, remit or commute a sentence passed by a Court-Martial.
(2) Nothing in this Act shall derogate from the right of His Majesty, or of the
Governor-General, if any such right is delegated to him by His Majesty, to grant
pardons, reprieves, respites or remissions of punishment."
There was no provision in the Government Act corresponding to Article 161 of the
Constitution.
• Constituent Assembly Debates

• The above constitutional provisions were debated in the
Constituent Assembly on 29th December 1948 and 17th
September 1949 [see Constituent Assembly Debates, Vol.7,
pages 1118-1120 and Vol. 10, page 389]. The grounds and
principles on which these powers should be exercised were
neither discussed nor debated [See Framing of India's
Constitution: A Study, 2" Edition, Dr. Subhash C Kashyap,
pages 367-371 , pages 397-399].
The philosophy underlying the pardon power is that "every civilized country
recognizes, and has therefore provided for, the pardoning power to be
exercised as an act of grace and humanity in proper cases. Without such a
power of clemency, to be exercised by some department or functionary of
a government, a country would be most imperfect and deficient in its
political morality, and in that attribute of Deity whose judgments are
always tempered with mercy." [See 59 American Jurisprudence 2d, page 5].
The rationale of the pardon power has been felicitously enunciated by the
celebrated Justice Holmes of the United States Supreme Court in the case
of Biddle v. Perovich in these words [71 L. Ed. 1161 at 1163]:
"A pardon in our days is not a private act of grace from an individual
happening to possess power. It is a part of the constitutional scheme.
When granted, it is the determination of the ultimate authority that the
public welfare will be better served by inflicting less than what the
judgment fixed."
"Pardon and Parole" as per Corpus Juris Secundum (Vol.67-A)
reads as follows: (Pages 16 and 17)
"The pardoning power is founded on considerations of the
public good, and is to be exercised on the ground that the
public welfare, which is the legitimate object of all punishment,
will be as well promoted by a suspension as by an execution of
the sentence. It may also be used to the end that justice be done
by correcting injustice, as where after-discovered facts convince
the official or board invested with the power that there was no
guilt or that other mistakes were made in the operation or
enforcement of the criminal law. Executive clemency also exists
to afford relief from undue harshness in the operation or
enforcement of criminal law."
• Scope of Judicial Review
• It is fairly well settled that the exercise or non-exercise of pardon power by the President or
Governor, as the case may be, is not immune from judicial review. Limited judicial review is
available in certain cases.
• In Maru Ram's case it was held that all public power, including constitutional power, shall never be
exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors
of the valid play of power.
• It is noteworthy that in Kehar Singh's case the contention that the power of pardon can be exercised
for political consideration was unequivocally rejected. In Maru Ram's case it was held that
consideration of religion, caste, colour or political loyalty are totally irrelevant and fraught with
discrimination.
• In Kehar Singh's case it was held that the order of the President cannot be subjected to judicial
review on its merits except within the strict limitations delineated in Maru Ram's case . The function
of determining whether the act of a constitutional or statutory functionary falls within the
constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous
appreciation of the full amplitude of the power is a matter for the court.
• In Kehar Singh's case , placing reliance on the doctrine of the division (separation)
of powers it was pleaded, that it was not open to the judiciary to scrutinize the exercise
of the "mercy" power. In dealing with this submission this Court held that the
question as to the area of the President's power under Article 72 falls squarely within
the judicial domain and can be examined by the court by way of judicial review.
Scope of Judicial Review
• As regards the considerations to be applied to a petition for pardon/remission
in Kehar Singh's case this Court observed as follows:
“As regards the considerations to be applied by the President to the petition, we
need say nothing more as the law in this behalf has already been laid down by
this Court in Maru Ram.”
• In the case of Swaran Singh v. State of U.P. [1998 (4) SCC 75] after referring
to the judgments in the cases of Maru Ram's case and Kehar Singh's case this
Court held as follows:
“we cannot accept the rigid contention of the learned counsel for the third
respondent that this court has no power to touch the order passed by the Governor
under Article 161 of the Constitution. If such power was exercised arbitrarily,
mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-
product order cannot get the approval of law and in such cases, the judicial hand
must be stretched to it.”
Scope of Judicial Review
• Satpal and Anr. v. State of Haryana and Ors. [2000 (5) SCC 170]the Court held as
follows:
"the said power being a constitutional power conferred upon the Governor by the
Constitution is amenable to judicial review on certain limited grounds. The Court,
therefore, would be justified in interfering with an order passed by the Governor in exercise
of power under Article 161 of the Constitution if the Governor is found to have exercised
the power himself without being advised by the Government or if the Governor transgresses
the jurisdiction in exercising the same or it is established that the Governor has passed the
order without application of mind or the order in question is mala fide one or the Governor
has passed the order on some extraneous consideration."
• The position, therefore, is undeniable that judicial review of the order of the
President or the Governor under Article 72 or Article 161, as the case may be, is
available and their orders can be impugned on the following grounds:
(a) that the order has been passed without application of mind
(b) that the order is mala fide
(c) that the order has been passed on extraneous or wholly irrelevant considerations
(d) that relevant materials have been kept out of consideration
(e) that the order suffers from arbitrariness
Factual Background
• Coming to the factual position it is noticed that the various materials were placed
before the Governor when the request for grant of pardon/remission was
processed at various levels. The views of the District level officials were obtained.
Since they formed the basis of impugned order, it is relevant to take note of
some interesting features.
• The three District level officials were Superintendent of Police, the District
Collector, Kunoor and the District Probation Officer. Apart from that, the views
of the Superintendent of jail, Central Prison, Cherlapally were obtained.
Collector’s Report
• The Collector's report refers to the report given by the Superintendent of Police
and reproduces the same in the report contained in letter dated 9.12.2004. He also
refers the letter dated 8.12.2004 of the Revenue Divisional Officer who according
to him had indicated no objection to release of respondent No.2 on premature basis
as his conduct and character was good and he lead ordinary life during the period
of his escort parole from 19.5.2004 to 7.8.2004 and the free parole from 20.10.2004
to 6.11.2004. Only on that basis the District Collector recommended
premature release.
• According to learned counsel for the State this was sufficient as the Collector had to
act on some material and he acted on the reports of the Superintendent of Police
and the Revenue Divisional officer. The plea is clearly unacceptable. The Collector
does not appear to have made any independent enquiry on his own.
Factual Background
• The report of District Probation officer is very interesting. In

his report he has stated that if he (Respondent No.2) is
prematurely released his life would be safe because his wife is a
sitting MLA and she is having a police security. Further he was
having a strong hold in the village and there is no opposition in
Bramhanakotkur village.
Following portion of his report shows as to how extraneous materials
which had no relevance formed the foundation of his report.
Factual Background
Report of District Probation Officer
• “The convict Gouru Venkata Reddy S/o Janardhan Reddy, Central Prison Cherlapalli belongs to Upper
Caste Reddy's family of Brahmanakotkur (Village) Nandikotkur Mandal and Taluk. The father of the
convict was Janardhan Reddy and mother was Gouru Lakshmi Devi and during enquiry it is revealed
that both were dead. The grand mother of convict Smt. Ratnamma is old, aged and there is no male
person in the house to look after her. She desires that the convict should come and provide
medical treatment to her. In the past the convict contested in the elections and was defeated with
small margin. During enquiry it is revealed that the is Congresconvicts Worker and due to political
conspiracy he was defeated. In the elections conducted later on, the wife of convict Smt. Saritha
Reddy contested and was elected. During enquiry it is revealed that the matters mentioned in the
application of the wife of the convict are true. The convict has two sisters. The deceased K. Rama
Subbaiah and Ambi Reddy belong to Nandikotkur village. In this murder case the convict is not
involved but due to political reasons his name was implicated in the case by producing false
witnesses and sent to the Jail. But later they realized their mistake and the family members of
the deceased are maintaining cordial relations. During enquiry it is revealed that there is no
danger to the life of the convict from the villagers and also there is no danger to the villagers
from the convict if the convict is released as stated by the President of the village Shri Shaik
Ziauddin, Village Secretary Sri Sanjanna, village elders Shri Nagaswamy Reddy, Sri K. Venkata
Rami Reddy, Shri Khajamoinuddin and Sri Pathan Moutali etc. As seen from the past history of
the convict he is not a naxalite, dacoit, and habitual offender. He was peacefully carrying out
agricultural activities and a good Congress Worker. He used to provide employment to a
number of persons through agriculture. It is also revealed that the villagers are having good
opinion on the convict.”
Factual Background
Objectionable part found by the SC in the report
• Apart from apparently wrong statement made that
respondent No.2 was maintaining cordial relationship
with the family members of the deceased, he has
highlighted that he was a "good Congress Worker".
Further there is an inference that he was not involved in
the murder was falsely implicated and false witnesses
were produced. This inference on the fact of this
Court's judgment is utterly fallacious. The question of
his being a "good Congress Worker" has no relevance the
objects sought to be achieved i.e. consideration of the
question whether pardon/remission was to be granted.
Equally surprising is the statement to the effect that during
enquiry it was revealed that the convict is Congress
worker and by political conspiracy he was defeated in
the elections conducted earlier.
Factual Background
• Report of the Superintendent of Police
• The report of the Superintendent of Police is equally
interesting. He has stated that there will be no reaction in
Brahmana Kotkur village and Nandikotkur town if the prisoner
releases on prematurely. The report is dated 6.12.2004. Before
the elections, the same officer had reported that on account
of respondent No.2's release on parole, there was
likelihood of breach of peace and law and order if he visits
Nandikotkur Assembly Constituency. The only reason why
a pariah becomes a messiah appears to be the change in
the ruling pattern. With such pliable bureaucracy, there is
need for deeper scrutiny when power of pardon/remission
is exercised.
Factual Background
• It appears that in the petition filed by respondent No.3 there
is no mention about pendency of a Criminal case No. 411
of 2000. Learned counsel for the respondent No.1-State
submitted that though this fact was not mentioned by the
respondent No.3 in the petition yet the State Government
considered the effect of the pendency of that petition. This
certainly is a serious matter because a person who seeks exercise
of highly discretionary power of a high constitutional authority
has to show bona fides and must place materials with clean
hands.
Final Order-Justice Pasayat
• When the principles of law as noted above are considered in
the factual background it is clear that the irrelevant and
extraneous materials entered into the decision making
process, thereby vitiating it.
• 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.
KAPADIA, J.
Although, 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.
• Pardons, 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 has fixed.
• The power 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.
• The 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.
Justice Kapadia
• Exercise 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.
Regarding Judicial Review
• 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
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. The 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".
Regarding Judicial Review
• 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.
Regarding guidelines
• The 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.
Grounds of Judicial Review
• As 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.
In 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.
Shatrughan Chauhan
Versus
Union of India
21 January 2014
Bench:
P. SATHASIVAM,J.
RANJAN GOGOI, J
SHIVA KIRTI SINGH,J.
.
Shatrughan Chauhan vs Union of India
21 January 2021
• Why this case is important?

1. In a single stroke Supreme Court commuted
the death sentence of 15 death row convicts
into life imprisonment.
2. What are the supervening factors?
3. Overruled Division Bench judgement.
4. Laid down guidelines for the benefit of death
row convicts.
Who filed the petition?
All the writ petitions (12), under Article 32 of the

Constitution of India, have been filed either
• by the convicts, who were awarded death
sentence or
• by their family members or
• by public-spirited bodies like People’s Union
for Democratic Rights (PUDR)
based on the rejection of mercy petitions by
the Governor and the President of India.
Summary of cases leading
to petitioners sentencing
Summary
1. Mr. Shatrughan Chauhan and Mr. Mahinder Chauhan, family members of death
convicts – Suresh and Ramji have filed Writ Petition. Killed five members of
their family – two adults and three children over property dispute.
2. Shamik Narain filed the writ for four death convicts, viz.,Bilavendran,
Simon, Gnanprakasam and Madiah aged 55 years, 50 years, 60 years
and 64 years respectively.
3. Praveen Kumar, aged about 55 years. He was charged for murdering four
members of a family for their jewellery to repay a gambling debt.
4. Gurmeet Singh, aged about 56 years. Gurmeet is convicted of killing 13
members of his family in Pilibhit in August 1986. It was a murder driven by
anger because Gurmeet’s family did not approve of his friendship with Lakha
Singh.
5. On August 23, 2001, her 19th birthday, Sonia and her husband Sanjeev
murdered eight members of her family. She believed she was being cut off
from the family property, said to be worth hundreds of crores of rupees. Her
father, Relu Ram Punia, was a former Haryana MLA. He was among those
clubbed to death, along with Sonia’s sister, stepmother, stepbrother, his wife and
their three children, the eldest aged four, the youngest a month old.
Summary
6. PUDR has filed this petition for Sundar Singh. Sundar Singh killed
five relatives. Cousin Pratap Singh and his family in 1989. It was over a
small plot of land that each cousin wanted as his share.
7. On 14.07.2003, the Jaffar ali was convicted under Section 302 IPC for
the murder of his wife and five daughters and was sentenced to death.
8. Writ Petition filed by PUDR on behalf of Maganlal Barela (tribal),

death convict, aged about 40. He killed his five daughters aged six to
one, in a fit of frenzy on June 11, 2010
9. Shivu Munishetty, 31, and Jadeswamy Rangashetty, 25, of

Karnataka’s Chamarajanagar district, were convicted in the 2001 rape and
murder of an 18-year-old and sentenced to death on October 15, 2001.
Summary of the cases leading to their
sentencing
• The Supreme Court on Tuesday commuted the death sentences
of 15 deathrow convicts, most of them on grounds of a delay in
the disposal of their mercy petitions. A look at the cases leading
to their sentencing, and how long they spent on death row.
Prayer/Reliefs sought
1. Execution of sentence of death pursuant to the rejection of the mercy petition by
the President of India is unconstitutional.
2. Set aside the death sentence imposed upon them by commuting the same to
imprisonment for life.
3. Rejecting their respective mercy petitions as illegal and unenforceable.
4. Guidelines
• Para-3 --In all the writ petitions, the main prayer consistently relates to the
issuance of a writ of declaration declaring that execution of sentence of
death pursuant to the rejection of the mercy petitions by the President of
India is unconstitutional and to set aside the death sentence imposed upon
them by commuting the same to imprisonment for life.
• Further, it is also prayed for declaring the order passed by the Governor/President
of India rejecting their respective mercy petitions as illegal and unenforceable.
• Besides, in the writ petition filed by PUDR, PUDR prayed for various directions in
respect of procedure to be followed while considering the mercy petitions, and in
general for protection of rights of the death row convicts.
Maintainability of the Petition
7) The aforesaid petitions, under Article 32 of the Constitution, seek relief
against alleged infringement of certain fundamental rights on account of
failure on the part of the executive to dispose of the mercy petitions filed
under Article 72/161 of the Constitution within a reasonable time.
8) At the outset, the petitioners herein justly elucidated that they are not
challenging the final verdict of this Court wherein death sentence was
imposed. In fact, they asserted in their respective petitions that if the
sentence had been executed then and there, there would have been no
grievance or cause of action. However, it wasn’t and the supervening
events that occurred after the final confirmation of the death
sentence are the basis of filing these petitions.
9)In the given case, the stand of the petitioners herein is that exercise of
the constitutional power vested in the executive specified under
Article 72/161 has violated the fundamental rights of the petitioners
herein.
Maintainability of Petition
• This Court, as in past, entertained the petitions of
the given kind and issued appropriate orders as in
T.V. Vatheeswaran vs. State of Tamil Nadu
(1983) 2 SCC 68, Sher Singh and Ors. vs. State
of Punjab (1983) 2 SCC 344 Triveniben vs. State
of Gujarat (1988) 4 SCC
• Accordingly, we accede to the stand of the
petitioners and hold that the petitions are
maintainable.
Nature of power guaranteed under Article 72/161 of
the Constitution
• Cited Kehar Singh and Epuru Sudhakar
• Power not a matter of grace or privilege
• To be exercised on the aid and advice of the COMs.
• 17) In concise, the power vested in the President under 72 and the
Governor under Article 161 of the Constitution is a Constitutional
duty. As a result, it is neither a matter of grace nor a matter of
privilege but is an important constitutional responsibility
reposed by the people in the highest authority.
• The power of pardon is essentially an executive action, which needs
to be exercised in the aid of justice and not in defiance of it.
• Aid and Advice

• Further, it is well settled that the power under Article 72/161 of the
Constitution of India is to be exercised on the aid and advice of the
Council of Ministers.
Power independent of judiciary
12) Both Articles 72 and 161 repose the power of the people in the
highest dignitaries, i.e., the President or the Governor of a State, as the
case may be, and there are no words of limitation indicated in either of
the two Articles.
The President or the Governor, as the case may be, in exercise of
power under Article 72/161 respectively, may examine the
evidence afresh and this exercise of power is clearly
independent of the judiciary. This Court, in numerous
instances, clarified that the executive is not sitting as a court of
appeal rather the power of President/Governor to grant
remission of sentence is an act of grace and humanity in
appropriate cases, i.e., distinct, absolute and unfettered in its
nature.
Framing of guidelines
18) As already emphasized, the power of the executive to grant pardon

under Article 72/161 is a Constitutional power and this Court, on
numerous occasions, has declined to frame guidelines for the
exercise of power under the said Articles for two reasons.
• Firstly, it is a settled proposition that there is always a
presumption that the constitutional authority acts with
application of mind as has been reiterated in Bikas Chatterjee vs.
Union of India (2004) 7 SCC 634.
• Secondly, this Court, over the span of years, unanimously took
the view that considering the nature of power enshrined in
Article 72/161, it is unnecessary to spell out specific guidelines.
Judicial Review
19) Nevertheless, this Court has been of the

consistent view that the executive orders under
Article 72/161 should be subject to limited judicial
review based on the rationale that the power
under Article 72/161 is per se above judicial review
but the manner of exercise of power is certainly
subject to judicial review. Accordingly, there is no
dispute as to the settled legal proposition that the
power exercised under Article 72/161 could be the
subject matter of limited judicial review.
Judicial Review
20) Though the contours of power under Article 72/161 have not been defined, this
Court, in Narayan Dutt vs. State of Punjab (2011) 4 SCC 353, para 24, has held
that the exercise of power is subject to challenge on the following grounds:
a) If the Governor had been found to have exercised the power himself without
being advised by the government;
b) If the Governor transgressed his jurisdiction in exercising the said power;
c) If the Governor had passed the order without applying his mind;
d) The order of the Governor was mala fide; or
e) The order of the Governor was passed on some extraneous considerations.
• These propositions are culmination of views settled by this Court that:

(i) Power should not be exercised malafidely. (Vide Maru Ram vs. Union
of India, paras 62, 63 & 65).
(ii) No political considerations behind exercise of power. In this context, in
Epuru Sudhakar
Judicial Review
• 21) A perusal of the above case-laws makes it clear that

the President/Governor is not bound to hear a
petition for mercy before taking a decision on the
petition. The manner of exercise of the power under the
said articles is primarily a matter of discretion and
ordinarily the courts would not interfere with the decision
on merits.
• However, the courts retain the limited power of judicial

review to ensure that the constitutional authorities
consider all the relevant materials before arriving at a
conclusion.
22) It is the claim of the petitioners herein that
the impugned executive orders of rejection of
mercy petitions against 15 accused persons were
passed without considering the supervening
events which are crucial for deciding the same.
Supervening Circumstances
24) The petitioners herein have asserted the following events as the
supervening circumstances, for commutation of death sentence to life
imprisonment.
(i) Delay
(ii) Insanity
(iii) Solitary Confinement
(iv) Judgments declared per incuriam
(v) Procedural Lapses
25) All the petitioners have more or less asserted on the aforesaid
grounds which, in their opinion, the executive had failed to take note
of while rejecting the mercy petitions filed by them.
DELAY as a Supervening Factor
• T. V. Vatheeswaran v. State of T.N, AIR 1981 SC 643 [2]

• Sher Singh v. State of Punjab, AIR 1983 SC 465 [3]
• Smt. Triveniben vs. State of Gujarat (1988) 4 SCC 574 [5]
DELAY as a Supervening Factor
• 54) As already asserted, this Court has no jurisdiction under Article 32 to reopen
the case on merits. Therefore, in the light of the aforesaid elaborate discussion, we
are of the cogent view that undue, inordinate and unreasonable delay in execution
of death sentence does certainly attribute to torture which indeed is in violation of
Article 21 and thereby entails as the ground for commutation of sentence.
However, the nature of delay i.e. whether it is undue or unreasonable must be
appreciated based on the facts of individual cases and no exhaustive guidelines can
be framed in this regard.
• 70) Taking guidance from the above principles and in the light of the ratio
enunciated in Triveniben (supra), we are of the view that unexplained delay is one of
the grounds for commutation of sentence of death into life imprisonment and the
said supervening circumstance is applicable to all types of cases including the
offences under TADA.
• The only aspect the courts have to satisfy is that the delay must be unreasonable
and unexplained or inordinate at the hands of the executive. The argument of Mr.
Luthra, learned ASG that a distinction can be drawn between IPC and non-IPC
offences since the nature of the offence is a relevant factor is liable to be rejected
at the outset. In view of our conclusion, we are unable to share the views
expressed in Devender Pal Singh Bhullar(supra).
Rationality of Distinguishing between Indian Penal Code, 1860
And Terrorist and Disruptive Activities (Prevention) Act
Offences for Sentencing Purpose
• Devender Pal Singh Bhullar vs. State (NCT) of Delhi
(2013) 6 SCC 195
• when the accused are convicted under TADA, there is no
question of showing any sympathy or considering
supervening circumstances for commutation of sentence,
and emphasized the need for reconsideration of the
verdict. According to Mr. Ram Jethmalani, Devender Pal
Singh Bhullar (supra) is per incuriam and is not a binding
decision for other cases. He also prayed that inasmuch as the
ratio laid down in Devender Pal Singh Bhullar (supra) is
erroneous, this Court, being a larger Bench, must overrule
the same.
Rationality of Distinguishing between Indian Penal Code, 1860 And Terrorist
and Disruptive Activities (Prevention) Act Offences for Sentencing Purpose
• In the light of the same, we are of the view that the ratio laid down in
Devender Pal Singh Bhullar (supra) is per incuriam. There is no dispute that in the
same decision this Court has accepted the ratio enunciated in Triveniben (supra)
(Constitution Bench) and also noted some other judgments following the ratio
laid down in those cases that unexplained long delay may be one of the grounds for
commutation of sentence of death into life imprisonment. There is no good
reason to disqualify all TADA cases as a class from relief on account of delay
in execution of death sentence. Each case requires consideration on its own
facts.
(ii) Insanity/Mental
Illness/Schizophrenia
(ii) Insanity/Mental Illness/Schizophrenia
• In view of the well established laws both at

national as well as international sphere, we are
inclined to consider insanity as one of the
supervening circumstances that warrants for
commutation of death sentence to life
imprisonment.
• 80) Another supervening circumstance, which most of the petitioners appealed in their
petitions is the ground of solitary confinement. The grievance of some of the
petitioners herein is that they were confined in solitary confinement from the date
of imposition of death sentence by the Sessions Court which is contrary to the
provisions of the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973,
Prisons Act and Articles 14, 19 and 21 of the Constitution and it is certainly a form
of torture. However, the respective States, in their counter affidavits and in oral
submissions, have out rightly denied having kept any of the petitioners herein in
solitary confinement in violation of existing laws. It was further submitted that
they were kept separately from the other prisoners for safety purposes. In other
words, they were kept in statutory segregation and not per se in solitary
confinement.
• Sunil Batra vs. Delhi Administration and Ors. etc. (1978) 4 SCC
494
83) Even in Triveniben (supra), this Court observed that keeping a
prisoner in solitary confinement is contrary to the ruling in Sunil
Batra (supra) and would amount to inflicting “additional and
separate” punishment not authorized by law. It is completely
unfortunate that despite enduring pronouncement on judicial side,
the actual implementation of the provisions is far from reality.
• We take this occasion to urge to the jail authorities to

comprehend and implement the actual intent of the verdict in
Sunil Batra (supra).
84) As far as this batch of cases is concerned, we are not inclined

to interfere on this ground.
(iv) Judgments Declared Per Incuriam
(iv) Judgments Declared Per Incuriam
• 89) As pointed out by learned ASG for the Union
of India, no decision mentioned above was found
to be erroneous or wrongly decided. However, due
to various factual situations, certain decisions were
clarified and not applied to the facts of the peculiar
case. In these circumstances, we are of the view
that there is no need to give importance to the
arguments relating to per incuriam.
(v) Procedural Lapses
• 90) The last supervening circumstance averred
by the petitioners herein is the ground of
procedural lapses. It is the claim of the
petitioners herein that the prescribed
procedure for disposal of mercy petitions was
not duly followed in these cases and the lapse
in following the prescribed rules have caused
serious injustice to both the accused (the
petitioners herein) and their family members.
Guidelines
• Peoples’ Union for Democratic Rights have pleaded for

guidelines for effective governing of the procedure of filing
mercy petitions and for the cause of the death convicts.
• It is well settled law that executive action and the legal procedure
adopted to deprive a person of his life or liberty must be fair,
just and reasonable and the protection of Article 21 of the
Constitution of India inheres in every person, even death-row
prisoners, till the very last breath of their lives.
• In view of the disparities in implementing the already existing

laws, we intend to frame the following guidelines for
safeguarding the interest of the death row convicts.?
Guidelines
1. Solitary Confinement
2. Legal Aid
3. Procedure in placing the mercy petition before the President
4. Communication of Rejection of Mercy Petition by the Governor
5. Communication of Rejection of the Mercy Petition by the
President right to receive a copy of the rejection of the mercy
petition by the President and the Governor.
6. Minimum 14 days notice for execution
7. Mental Health Evaluation
8. Physical and Mental Health Reports
9. Furnishing documents to the convict
10. Final Meeting between Prisoner and his Family
1. Solitary Confinement
• This Court, in Sunil Batra (supra), held that solitary or

single cell confinement prior to rejection of the mercy petition
by the President is unconstitutional. Almost all the prison
Manuals of the States provide necessary rules governing the
confinement of death convicts. The rules should not be
interpreted to run counter to the above ruling and violate
Article 21 of the Constitution.
2. Legal Aid
• There is no provision in any of the Prison Manuals for
providing legal aid, for preparing appeals or mercy petitions or for
accessing judicial remedies after the mercy petition has been
rejected. Various judgments of this Court have held that legal aid is
a fundamental right under Article 21. Since this Court has also held
that Article 21 rights inhere in a convict till his last breath, even after
rejection of the mercy petition by the President, the convict can
approach a writ court for commutation of the death sentence on
the ground of supervening events, if available, and challenge the
rejection of the mercy petition and legal aid should be provided to
the convict at all stages.
• Accordingly, Superintendent of Jails are directed to intimate

the rejection of mercy petitions to the nearest Legal Aid
Centre apart from intimating the convicts.
3. Procedure in placing the mercy petition before the
President
• The Government of India has framed certain guidelines for disposal of mercy
petitions filed by the death convicts after disposal of their appeal by the Supreme
Court.
• As and when any such petition is received or communicated by the State

Government after the rejection by the Governor, necessary materials such
as police records, judgment of the trial court, the High Court and the
Supreme Court and all other connected documents should be called at
once fixing a time limit for the authorities for forwarding the same to the
Ministry of Home Affairs. Even here, though there are instructions, we have
come across that in certain cases the Department calls for those records in piece-
meal or one by one and in the same way, the forwarding Departments are also not
adhering to the procedure/instructions by sending all the required materials at
one stroke. This should be strictly followed to minimize the delay. After
getting all the details, it is for the Ministry of Home Affairs to send the
recommendation/their views to the President within a reasonable and
rational time.
• Even after sending the necessary particulars, if there is no response from

the office of the President, it is the responsibility of the Ministry of Home
Affairs to send periodical reminders and to provide required materials for
early decision.
4. Communication of Rejection of Mercy Petition by
the Governor
• No prison manual has any provision for informing the

prisoner or his family of the rejection of the mercy
petition by the Governor. Since the convict has a
constitutional right under Article 161 to make a
mercy petition to the Governor, he is entitled to be
informed in writing of the decision on that mercy
petition. The rejection of the mercy petition by the
Governor should forthwith be communicated to the
convict and his family in writing or through some
other mode of communication available.
5. Communication of Rejection of the Mercy Petition
by the President
• Many, but not all, prison manuals have provision for informing
the convict and his family members of the rejection of mercy
petition by the President. All States should inform the prisoner and
their family members of the rejection of the mercy petition by the
President. Furthermore, even where prison manuals provide for
informing the prisoner of the rejection of the mercy petition, we
have seen that this information is always communicated orally, and
never in writing. Since the convict has a constitutional right
under Article 72 to make a mercy petition to the President, he
is entitled to be informed in writing of the decision on that
mercy petition. The rejection of the mercy petition by the
President should forthwith be communicated to the convict
and his family in writing.
6. Right to Receive Copy
• Death convicts are entitled as a right to receive a

copy of the rejection of the mercy petition by
the President and the Governor.
7. Minimum 14 days notice for execution
• Some prison manuals do not provide for any minimum period between the
rejection of the mercy petition being communicated to the prisoner and his family
and the scheduled date of execution. Some prison manuals have a minimum
period of 1 day, others have a minimum period of 14 days. It is necessary that a
minimum period of 14 days be stipulated between the receipt of
communication of the rejection of the mercy petition and the scheduled
date of execution for the following reasons:-
• (a) It allows the prisoner to prepare himself mentally for execution, to make
his peace with god, prepare his will and settle other earthly affairs.
• (b) It allows the prisoner to have a last and final meeting with his family
members.
• It also allows the prisoners’ family members to make arrangements to travel to the
prison which may be located at a distant place and meet the prisoner for the last
time. Without sufficient notice of the scheduled date of execution, the prisoners’
right to avail of judicial remedies will be thwarted and they will be prevented from
having a last and final meeting with their families.
• It is the obligation of the Superintendent of Jail to see that the family

members of the convict receive the message of communication of rejection
of mercy petition in time.
8. Mental Health Evaluation
• We have seen that in some cases, death-row prisoners

lost their mental balance on account of prolonged
anxiety and suffering experienced on death row. There
should, therefore, be regular mental health
evaluation of all death row convicts and
appropriate medical care should be given to those
in need.
9. Physical and Mental Health Reports
• All prison manuals give the Prison Superintendent the discretion to stop
an execution on account of the convict’s physical or mental ill health.
• It is, therefore, necessary that after the mercy petition is rejected and the
execution warrant is issued, the Prison Superintendent should satisfy
himself on the basis of medical reports by Government doctors and
psychiatrists that the prisoner is in a fit physical and mental condition to
be executed.
• If the Superintendent is of the opinion that the prisoner is not fit, he

should forthwith stop the execution, and produce the prisoner before a
Medical Board for a comprehensive evaluation and shall forward the
report of the same to the State Government for further action.
10. Furnishing documents to the convict
• Most of the death row prisoners are extremely poor and do not
have copies of their court papers, judgments, etc.
• These documents are must for preparation of appeals, mercy

petitions and accessing post-mercy judicial remedies which are
available to the prisoner under Article 21 of the Constitution.
• Since the availability of these documents is a necessary prerequisite

to the accessing of these rights, it is necessary that copies of
relevant documents should be furnished to the prisoner within
a week by the prison authorities to assist in making mercy
petition and petitioning the courts.
11. Final Meeting between Prisoner and his Family
• While some prison manuals provide for a final meeting

between a condemned prisoner and his family immediately prior
to execution, many manuals do not. Such a procedure is intrinsic
to humanity and justice, and should be followed by all prison
authorities.
• It is therefore, necessary for prison authorities to facilitate

and allow a final meeting between the prisoner and his
family and friends prior to his execution.
Post Shatrughan
Post Shatrughan
• Devendra Pal Singh Bhullar v State (NCT) of Delhi,(2013) 6 SCC195
• Shartuhan Chauhan v UOI, Jan 21, 2014
• Navneet Kaur v State of NCT of Delhi, March 31 2014
• (P Sathasivam, RM Lodha, HL Dattu, Sudhansu Jyoti Mukhopadhya)
• Curative Petition
• Death Sentence commuted to Life Imprisonment on two grounds:
• 1. Delay of 8 years
• 2. Insanity
• V. Sriharan@Murugan v UOI, Feb 18 2014

• (P Sathasivam, Ranjan Gagoi,Shiva Kirti Singh)
• Supreme Court commuted the death sentence into life imprisonment of V. Sriharan @
Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu
• Jayalalitha letter dated 19-2-2014 proposed to remit the sentence of LI and release of all
seven, V Sriharan alias Murugan, T Suthenthirarajan alias Santhan, A G Perarivalan, S
Jayakumar, B Robert Payas, P Ravichandran and S Nalini
• UOI v V. Sriharan@Murugan, 2 Dec 2015

• (HL Dattu, Fakkir Mohamed Ibrahim Kalifulla, Pinaki Chanra Ghosh, Abhay Manohar Sapre, Uday Umesh Lalit)
• 20 April 2016- Centre rejects TN proposal to free Rajiv Gandhi killers.

Pardoning Power

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Pardoning Power

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Pardoning Power

• K.M.Nanavati v. State of Bombay, AIR 1961 SC112

• The Governor of a State shall have the power to grant

• Law commission of India Report on Capital Punishment, 1967

• Petitioner filed Special Leave Petition along with exemption

• Petitioner’s Affidavit before the Five Judges Bench

• As soon as the petitioner put in a petition for special leave to appeal

• The rules of remission and release were

• Rules of remission and release After 1978

• Section 433A effects two categories of Prisoners

• Issues related to Pardoning Power

• Constitutional powers under Arts. 72 and 161 are 'untouchable'

• Arts. 72 and 161 are beyond any legislative power to curb or

• Cooley has rightly indicated that 'where the pardoning power is

• The power under Articles 72 and 161 of the Constitution can be

• It is not open either to the President or the Governor to take

• The subject is now beyond controversy, this court having

• The Governor vis a vis his Cabinet is no higher than the

• The Constitutional conclusion is that the Governor is but a

• We cannot fault the Government, if in some intractably savage delinquents, s.

• These observations of ours are recommendatory to avoid a hiatus, but it is for

• The court, if it finds frequent misuse of this power may have to

• Considerations for exercise of power under Articles 72/161

• Sentenced to death by the Additional Sessions Judge, New Delhi.

• APPEAL dismissed by the High Court

• APPEAL BY SPECIAL LEAVE was dismissed on 3rd August, 1988.

• A REVIEW PETITION filed thereafter by Kehar Singh was dismissed on 7th

• WRIT PETITION was also dismissed by Supreme Court.

• In that petition reference was made to the evidence on the record of

• The petition included a prayer that Kehar Singh's representative may

• On 23 October, 1988 counsel for Kehar Singh wrote to the President

• On 3 November, 1988 a further letter was addressed to the President by counsel

• On 15 November, 1988 the Secretary to the President wrote to counsel as

• Whether judicial review extends to an examination of the order

• Whether the petitioner is entitled to an oral hearing from the

• President's power under Art. 72 falls squarely within the judicial

• President’s order under Article 72 cannot be subjected to

• He has no right to insist on presenting an oral argument.

• The matter lies entirely within his discretion.

• Supreme Court held

• Indeed, it may not be possible to lay down any precise, clearly

• The power under Art. 72 is of the widest amplitude, can contemplate

• In the result, having regard to the view taken

• Wife’s representation of grant of Parole-granted and its

• Section 295 of Government of India Act, 1935

• Constituent Assembly Debates

• The report of District Probation officer is very interesting. In

• The order granting remission which is impugned in the

• However, it is open to the respondent No.1 to treat the

• Pardons, reprieves and remissions are manifestation of the exercise of

• The ethos of "Government according to law" requires the prerogative to be

• It is important to bear in mind that every aspect of the exercise of the

• In certain cases, a particular aspect may not be justiciable. However,

• By manageable standards we mean standards expected in functioning

• A pardon obtained by fraud or granted by mistake or granted for improper

• Why this case is important?

All the writ petitions (12), under Article 32 of the

8. Writ Petition filed by PUDR on behalf of Maganlal Barela (tribal),

9. Shivu Munishetty, 31, and Jadeswamy Rangashetty, 25, of

• Aid and Advice

18) As already emphasized, the power of the executive to grant pardon

19) Nevertheless, this Court has been of the