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Clemency powers: SC warns Executive
S.S. Negi
Legal Correspondent

New Delhi, October 11
In a stern reminder to the Executive of its constitutional responsibility in exercising the power of pardon to convicted persons, Supreme Court today warned the Central and state governments against recommending clemency petitions on political, religious and caste considerations and said such trend was fraught with dangerous consequences.

The strongly worded judgement came at a time when President A.P.J. Abdul Kalam is in receipt of a clemency petition on behalf of Parliament attack case convict Mohd Afzal Guru from his wife against the capital punishment awarded to him and a Delhi trial court has fixed October 20 for his execution.

“Considerations of religion, caste or political loyalty are irrelevant and fraught with discriminations. These are prohibited grounds. The rule of law is the basis for evaluation of all decisions… the rule of law is fairness and legal certainty,” a Bench of Mr Justice Arijit Pasayat and Mr Justice S.H. Kapadia held, while dealing with a case pertaining to grant of pardon by the Andhra Pradesh Governor to a Congress leader convicted of the murder of a Telugu Desam Party leader.

The Congress leader, Gowru Venketa Reddy, who was sentenced to life by trial court and AP High Court was awarded 10 years rigorous imprisonment by the Supreme Court. Reddy’s wife is presently a Congress MLA in the state.

The Congress Government headed by Rajshekher Reddy after coming to power in 2004 recommended to the then Governor, Sushil Kumar Shinde, now a Union Minister, to grant pardon to the convicted leader after he had completed five years of his term and was consequently set free.

This was challenged in the Supreme Court by two sons of the murdered TDP leader on the ground that the Governor acted on “political considerations”. The court allowed their plea and quashed the Governor’s order.

Deploring such misuse of clemency power by the Executive, the judges in separate but concurring verdicts said “the principle of legality occupies a central plan in the rule of law. Every prerogative (of President or Governor) is subject to the rule of law. The rule cannot be compromised on grounds of political expediency. Such considerations would be subversive of the fundamental principles of the rule of law and would amount to setting a dangerous precedent.”

“The power of the Executive clemency is not only for the benefit of convict but while exercising it, 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,” Justice Kapadia in his separate verdict laid down.

Justice Pasayat in the main judgement said “this certainly is a serious matter because a person who seeks the exercise of highly discretionary power of a high constitutional authority has to show bona fides and must place material with clean hands before it”.

The court said if clemency was granted on consideration of irrelevant facts or obtained by fraud or granted by mistake or for improper reasons, it would always be open to judicial review. When a decision is taken in this regard by President or Governor, “it must indicate manageable standards. By manageable standards we mean the standards expected in functioning democracy”.

Though the President and Governor were the sole judges of the sufficiency of facts before them and appropriating the grant of pardon, if there were any limitations, they have to be found in the Constitution itself not outside and the principle of exclusive cognizance would not apply. “This is the basic working test to be applied with grant of pardons, reprieves, remissions and commutation,” the court held.

The court made it clear that the clemency powers should not be seen as the power with the President and the Governor to overturn judgements of the courts but rather an Executive action to mitigate the punishment awarded in a criminal case or set it aside. “It eliminates the effect of conviction without addressing to the convict’s guilt or innocence.”



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