No power in a republic is irresponsible or irresponsive, the people in the last resort being the repositories and beneficiaries of public power.

(1976) 1 SCC 157 : (1976) 2 SCR 73

(SUPREME COURT OF INDIA)

No power in a republic is irresponsible or irresponsive, the people in the last resort being the repositories and beneficiaries of public power. But two limitations exist in our Constitutional system. The Court cannot intervene everywhere as an omniscient, omnipotent or omnipresent being. And when the Constitution, as here, has empowered the nation’s highest Executive, excluding by implication, judicial review, it is officious encroachment, at once procedurally ultra vires and upsetting comity of high instrumentalities, for this Court to be a super-power unlimited. The second limitation conditions all public power, whether a court oversees or no. That trust consists in the purity of public authorities. All power, however majestic the dignitary wielding it, shall be exercised in good faith, with intelligent and informed care and honestly for the public well.

8. Counsel’s contention that equality is denied in the matter of sentence where some get the benefit of clemency while others do not, has no foundation nor is there any trace of despotism involved in this matter in the case before us. The Court has deliberately awarded death sentence. The President is expected to, and we are sure will, consider all facts and circumstances bearing on the just discharge of his high duty. When the President is the custodian of the power, the Court makes an almost extreme presumption in favour of bonafide exercise. We have not been shown any demonstrable reason or glaring ground to consider the refusal of commutation in the present case as motivated by malignity or degraded by abuse of power. We therefore cannot find out way to interfere with what the President has done.

9. We must however sound a note of caution. Absolute, arbitrary, law-unto-oneself, malafide execution of public power, if gruesomely established, the Supreme Court may not be silent or impotent, Assuming as proved the case of a President gripped by communal frenzy and directing commutation of all the penalties where the convict belongs to a certain community and refusing outright where the convict belongs to a different community, there may be, as Shri Garg urged, a dilemma for the Court. Assuming the Governor in exercise of his power under Article 161 refusing to consider cases of commutation where the prisoner is above 40 years of age as a rule of thumb or arbitrarily out of personal vendatta rejecting the claim of clemency of a condemned prisoner, is the Court helpless? This large interrogation is highly hypothetical and whether the remedy is in Court or by impeachment in Parliament or by rising resentment in public opinion, it is not for us to examine now. Enough unto the day is the evil thereof.

A Constitutional order built on the founding faith of the rule of law may posit wide powers in high functionaries and validly exclude judge-power from eating these forbidden fruits. Article 72 (and Article 161) designedly and benignantly vests in the highest executive the humane and vast jurisdiction to remit, reprieve, respite, commute and pardon criminals on whom judicial sentences may have been imposed. Historically, it is a sovereign power; politically, it is a residuary power; humanistically, it is in aid of intangible justice where imponderable factors operate for the well-being of the community, beyond the blinkered court process. In Nanavati, 1961 CriLJ 173 this Court half-explored the area of ‘mercy’ power but switched on to a different question without pronouncing on the Court’s review of Presidential exercise of commutation or respite power. Sinha C J , speaking for the Court, observed :

Pardon is one of the many prerogatives which have been recognised since time immemorial as being vested in the sovereign, wherever the sovereignty might lie, Whether the sovereign happened to be an absolute monarch or a popular republic or a Constitutional king or queen, sovereignty has always been associated with the source power the power to appoint or dismiss public servants, the power to declare war and conclude peace, the power to legislate and the power to adjudicate upon all kinds of disputes.

(P. 516)

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“The Rule of Law, in contradistinction to the rule of man, include within its wide connotation the absence of arbitrary power, submission to the ordinary law of the land, and the equal protection of the laws. As a result of the historical process aforesaid, the absolute and arbitrary power of the monarch came to be canalised into three distinct wings of the Government”.

(P. 517)