The Hindu : New Delhi News : Court caution over power of pardon

Online edition of India's National Newspaper
Sunday, Feb 27, 2011
ePaper | Mobile/PDA Version

New Delhi

New Delhi

Court caution over power of pardon

J. Venkatesan

“President or Governor cannot encroach into judicial domain and give a finding on guilt”

‘Governor's power is a constitutional power; hence it is amenable to judicial review'
‘Deciding on innocence or otherwise of an accused is within exclusive domain of Court'

NEW DELHI: The President or the Governor, exercising the power of pardon in granting remission of sentence to a convict, cannot encroach into the judicial domain and give a finding on his/her guilt, the Supreme Court has held.

Giving this ruling, a Bench comprising Justices G.S. Singhvi and A.K. Ganguly said that if such a power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of constitutionalism, the by-product order could not get the approval of law, and in such cases, the judicial hand must be stretched to it.

Writing the judgment, Justice Ganguly said that since the power exercised by the Governor (in this case) was a constitutional power, it was amenable to judicial review for which guidelines had already been laid down by the Supreme Court in a number of decisions.

The Bench said: “It is well-settled that to decide on the innocence or otherwise of an accused person in a criminal trial is within the exclusive domain of a Court of competent jurisdiction, as this is essentially a judicial function. A Governor's power of granting pardon under Article 161 of the Constitution being an exercise of executive function is independent of the Court's power to pronounce on the innocence or guilt of the accused.

“The powers of a Court of law in a criminal trial and subsequent appeal right up to this Court and that of the President/Governor under Article 72/161 operate in totally different arenas, and the nature of these two powers are also totally different from each other. One should not trench upon the other.”

In the instant case, Sukhwinder Singh, Labh Singh, Avtar Singh, Bakhtaur Singh, Manjit Singh, Prem Kumar and Narayan Dutt were awarded life sentence in a murder case by a trial court in Punjab.

Even as the appeal was pending in the Punjab and Haryana High Court, an application for pardon was submitted to the Punjab Governor for three persons — Manjit Singh, Prem Kumar and Narayan Dutt.

The Governor granted pardon and directed the release of the three convicts observing that they were innocent.

On a writ petition from Rajinder Pal Singh, a relative of the victim, the High Court set aside the order of pardon, and the present appeals by Narayan Dutt and two others were directed against that order.

During the pendency of the present appeal, the High Court acquitted Narayan Dutt and Prem Kumar.

Disposing of the appeals, the Bench noted that the Governor's order also contained some reasons and observations about the guilt or innocence of the accused who prayed for pardon under Article 161.

It said: “The instant order of the Governor, by pronouncing upon the innocence of the accused, has therefore, if we may say so with respect, exceeded the permissible constitutional limits under Article 161 of the Constitution. We are constrained to hold that we cannot approve the order of the Governor. We therefore set aside the order of the Governor.”

The Bench asked him to reconsider the matter in accordance with the law.

Printer friendly page
Send this article to Friends by E-Mail

New Delhi