Author : Sandeep Rana
Case Name : Epru Sudhakar v Govt of A.P. 2006
EQUIVALENT CITATIONS : (2006) 8 SCC 161
- HON’BLE JUSTICE ARIJIT PASAYAT
The process of granting pardon in India starts with filing a mercy petition to the president under article 72 of the constitution. Firstly, this petition is discussed by the home ministry in consultation with the concerned state government, after the recommendations by the home minister, it is sent to the president.
The power to pardon is a part of the constitutional scheme. Article 72 of the constitution empowers the President to grant pardons, reprieves, respites or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
The misuse of use would be guarded by the council of ministers. Likewise, Article 161 of constitution grants this same power to the Governor of a state against any person convicted of any offence against any law relating to matters to which the executive power of the state.
ISSUE AND FACTS OF LAW
- Whether judicial review can be exercised to supersede the presidential pardon?
- What is the extent of the power of governor or president, as far as their pardoning power is concerned, is it an absolute power?
- What are the limitations that can be imposed on this power?
- What are the responsibilities of the governor or president while exercising this pardoning power under Indian constitution?
In this case, respondent (congress worker) murdered the fathers of both petitioners and ordered 10 years rigorous imprisonment under section 302 read with section 109 of IPC by Andhra Pradesh HC.
Later on, an application for parole was filed before the governor of state and they were granted remission of the unexpired sentence under article 161 of the constitution.
A petition was filed before SC against the grant of remission and alleged that it was illegal, without application of mind; no relevant material was placed before the governor.
The SC held that the limited judicial review of exercise of clemency powers is available to the Supreme Court and High court. The power granted to the president under article 161 is subjected to judicial review.
It was also held that the High court can quash governor pardoning power if it was exercised on political ground or caste or religious consideration. Granting of clemency by the President or Governor can be challenged if the order has been passed without application of mind, mala fide, extraneous or wholly irrelevant considerations, suffers from arbitrariness, and relevant material has been kept out of consideration.