The Court in Epuru Sudhakar v. Govt. of A.P. reported in (2006) 8 SCC 161, speaking in the context of Articles 72 and 161 of the Constitution respectively, observed that the determining factor in deciding whether a sovereign or prerogative power would be subject to judicial review is the subject-matter of such power and not its source. It held that the exercise of every prerogative power is subject to the rule of law and the rule of law cannot be made subservient to political expediency.
The Court defined that ‘manageable standards’ refer to certain discernible standards expected in a functioning democracy. It also held that exercise of any prerogative power cannot be placed in a straitjacket formula and manageable standards would vary depending on the nature of the power. The relevant observations are as follows:
“66. Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an executive action that mitigates or sets aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendant’s 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. The 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 subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency.
To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of “Government according to law”. The ethos of “Government according to law” requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.”
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69. 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 straitjacket formula 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 amounts to derogation of an important constitutional principle of Rule of Law.”
The Court in State of Tamilnadu v. Governor of Tamilnadu (2025), said that,
“the words and ideas of the wise artisans, who carefully weaved the fabric of the Constitution with threads borrowed from across the world after dying them in colors uniquely Indian, that we should look towards, when in doubt about the fundamental ideas of our Constitution.”