J. Venkatesan

This power must be exercised as per rules and established principles, says Bench

NEW DELHI: The Supreme Court has reiterated that religion, caste or political loyalty cannot be the basis for the President or the Governor to commute the sentence awarded by a court in criminal cases.

A Bench, in a recent judgment, quoted an earlier ruling and said: “Granting of pardon is in no sense an overturning of a judgment of conviction; 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.”

Dangerous precedent

The Bench consisting of Justices S.B. Sinha and Mukundakam Sharma said: “An undue and unjustified exercise of this power is to be deplored. The considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. 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.”

Writing the judgment, Justice Sharma said: “The appropriate government must not, as a matter of routine, indulge in the exercise of such powers at its sweet will, pleasure and whim or fancy. The powers conferred upon the government under Section 433 of the Cr. PC must be exercised in accordance with the rules and established principles…i.e. reasonably and rationally, keeping in view the reasons germane and relevant to the purpose of law under which the conviction and sentence has been imposed.”

The Bench said: “While exercising such power, relevant facts necessitating the commutation and the interest of society and the public interest must be reflected and well established. The exercise of any power vested by the statute in a public authority is to be always viewed as in trust, coupled with a duty to exercise the same in the larger public and social interest.”

In the instant case, Mohammed Ishaq challenged the order of the single judge of the Andhra Pradesh High Court, partly allowing the appeal of S. Kazam Pasha, an Islamic scholar, and setting aside his conviction for certain offences and convicting him of rioting and house trespass and awarding six-month imprisonment. As the State did not go in appeal, Mr. Ishaq filed a special leave petition. Since even the six-month term was commuted by the State to a fine of Rs. 5,000, the appellant questioned its action.


The Bench said: “We find that the order of the Andhra Pradesh government is untenable in law.” Though the High Court passed the order on January 29, 2007, Pasha surrendered before the sessions court only on April 16 that year and then filed an application for commutation. During this period, he had been absconding. This “unmistakably shows his callous attitude to the rule of law. The executive clemency may not be extended to a citizen who did not surrender before the trial court as mandated by the law. This vital aspect has been completely ignored by the Andhra Pradesh government.”

The impugned order was passed without application of mind, the Bench said, restoring the trial court’s order convicting Pasha under Sections 148 of the IPC (rioting), 382 (theft) and 452 (house trespass, assault or wrongful restraint) and sentencing him to two-year imprisonment.