The power of the executive to grant pardon under Article 72/161 is a Constitutional power and the 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 v. Union of India, (2004)7 SCC 634.
Secondly, the 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. In this context, in Epuru Sudhakar (supra), this Court held thus :
“36. So far as desirability to indicate guidelines is concerned in Ashok Kumar case it was held as follows: (SCC pp. 518-19, para 17)
“17. In Kehar Singh case on the question of laying down guidelines for the exercise of power under Article 72 of the Constitution this Court observed in para 16 as under: (SCC pp. 217-18, para 16) `It seems to us that there is sufficient indication in the terms of Article 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 channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme.’
These observations do indicate that the Constitution Bench which decided Kehar Singh case was of the view that the language of Article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may not be able to conceive of all myriad kinds and categories of cases which may come up for the exercise of such power.
No doubt in Maru Ram case the Constitution Bench did recommend the framing of guidelines for the exercise of power under Articles 72/161 of the Constitution. But that was a mere recommendation and not a ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singh case. Therefore, the observation made by the Constitution Bench in Kehar Singh case does not upturn any ratio laid down in Maru Ram case. Nor has the Bench in Kehar Singh case said anything with regard to using the provisions of extant Remission Rules as guidelines for the exercise of the clemency powers.”
The 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. [vide Kehar Singh (supra); Ashok Kumar (supra); Swaran Singh v. State of U.P., 1998(2) RCR (Criminal) 267 ; Satpal and Anr. v. State of Haryana and Ors. 2000(2) RCR (Criminal) 757 ; and Bikas Chatterjee (supra)]
Though the contours of power under Article 72/161 have not been defined, the Court, in Narayan Dutt v. State of Punjab, 2011(2) RCR (Civil) 209 : 2011(2) RCR (Criminal) 140 : 2011(2) Recent Apex Judgments (R.A.J.) 20 : (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 v. Union of India, paras 62, 63 & 65).
ii) No political considerations behind exercise of power. In this context, in Epuru Sudhakar (supra), this Court held thus :
“34. 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.
35. Two important aspects were also highlighted by learned amicus curiae; one relating to the desirability of indicating reasons in the order granting pardon/remission while the other was an equally more important question relating to power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration. According to learned amicus curiae, reasons are to be indicated, in the absence of which the exercise of judicial review will be affected.
37. In Kehar Singh case this Court held that: (SCC p. 216, para 13)
“There is also no question involved in this case of asking for the reasons for the President’s order.”
38. The same obviously means that the affected party need not be given the reasons. The question whether reasons can or cannot be disclosed to the Court when the same is challenged was not the subject-matter of consideration. In any event, the absence of any obligation to convey the reasons does not mean that there should not be legitimate or relevant reasons for passing the order.”
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.
Reference
Shatrughan Chauhan v. Union of India (1947)