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Issues Involved:
1. Scope and extent of the Governor's power under Article 161 of the Constitution of India. 2. Whether the Governor's order impinges on the judicial powers of the Supreme Court under Article 142 of the Constitution. 3. Validity of the Governor's order suspending the sentence during the pendency of an appeal in the Supreme Court. 4. The relationship between the executive power of pardon and the judicial power to suspend sentences. 5. The legality of the conditions imposed by the Governor's order. Issue-wise Detailed Analysis: 1. Scope and Extent of the Governor's Power under Article 161: The judgment discusses the historical and constitutional context of the Governor's power to grant pardons, reprieves, respites, or remissions of punishment under Article 161 of the Constitution. The power is described as plenary and unfettered, similar to the royal prerogative of mercy in England. It is emphasized that this power can be exercised at any time after the commission of an offense and is not limited by judicial proceedings. The judgment acknowledges that the Governor's power overlaps with the President's power under Article 72, particularly concerning death sentences. 2. Whether the Governor's Order Impinges on Judicial Powers under Article 142: The judgment examines whether the Governor's order suspending the sentence conflicts with the Supreme Court's power under Article 142 to pass orders necessary for doing complete justice in any cause or matter pending before it. It is concluded that both powers are unfettered within their respective fields, but when they overlap, a harmonious construction is needed to avoid conflict. The judgment holds that Article 161 does not cover the suspension of sentences during the period when the matter is sub-judice in the Supreme Court. 3. Validity of the Governor's Order Suspending the Sentence: The judgment addresses the validity of the Governor's order suspending the sentence during the pendency of an appeal in the Supreme Court. It is concluded that the Governor's power to suspend the sentence could only operate until the matter became sub-judice in the Supreme Court upon filing the petition for special leave to appeal. Once the Supreme Court is seized of the case, it has the authority to grant or refuse bail and to pass orders necessary for doing complete justice. 4. Relationship Between Executive Power of Pardon and Judicial Power to Suspend Sentences: The judgment distinguishes between the executive power of pardon, which includes reprieves and suspensions, and the judicial power to suspend sentences. The executive power is described as an act of mercy, clemency, or grace, exercised on grounds of public policy, while the judicial power is exercised based on judicial considerations. It is emphasized that both powers operate in different fields and are based on different principles. 5. Legality of the Conditions Imposed by the Governor's Order: The judgment briefly touches upon the legality of the condition imposed by the Governor's order, which required the petitioner to be detained in naval custody. However, it concludes that it is unnecessary to pronounce upon this aspect since the Governor's power to suspend the sentence during the period when the matter is sub-judice in the Supreme Court is not upheld. Conclusion: The majority judgment dismisses the petition, holding that the Governor's order suspending the sentence could not operate during the period the matter was sub-judice in the Supreme Court. The Governor's power under Article 161 is not absolute and must be harmonized with the Supreme Court's power under Article 142 to avoid conflict. The dissenting opinion argues for the plenary nature of the Governor's power and supports the petitioner's exemption from surrendering to the sentence.
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