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Thursday, Oct 12, 2006
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Court: remission not an act of grace

Legal Correspondent

Prerogative subject to rule of law

New Delhi: The Supreme Court on Wednesday said the power to grant pardon and reprieve to a convict was vested in the President and the Governor by virtue of Articles 72 and 161 of the Constitution. Pardon, reprieve and remissions were manifestations of the exercise of prerogative power.

"These are not acts of grace. They are part of the 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," said a Bench consisting of Justices Arjit Pasayat and S.H. Kapadia. The court set aside an order passed by the former Andhra Pradesh Governor remitting imprisonment awarded to Congress leader Gouru Venkata Reddy.

The Bench said: "The supreme quality of the Rule of Law is fairness and legal certainty. Every prerogative has to be subject to the Rule of Law.

That rule cannot be compromised on 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."

Therefore this discretion had to be exercised on public considerations alone.

Basic test

"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 itself. The principle of exclusive cognisance 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."

Granting pardon was in no sense an overturning of a conviction, but was rather an executive action that would mitigate or set 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," the Bench said.

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