K.M. Nanavati vs The State Of Bombay on 5 September, 1960

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Misc. Petn. No. 320/60

Decision Date: 5 September, 1960

Coram: Bhuvneshwar P. Sinha, J.L. Kapur, P.B. Gajendragadkar, K.N. Wanchoo

In this case the petitioner, K. M. Nanavati, who served as second in command of the Indian Navy ship INS Mysore that arrived in Bombay in early March 1959, was arrested on a charge of murder under section 302 of the Indian Penal Code. He remained in naval custody throughout the trial. The trial was conducted before a jury in the Sessions Court of Greater Bombay, and the jury returned a majority verdict of not guilty. The Sessions Judge, however, disagreed with the jury’s verdict and referred the matter to the High Court. The High Court convicted the petitioner under section 302 of the Indian Penal Code and sentenced him to life imprisonment. On the same day that the High Court delivered its judgment, the Governor of Bombay issued an order under Article 161 of the Constitution of India suspending the sentence until the petitioner could file an appeal in the Supreme Court and have that appeal disposed of, subject to the condition that the petitioner remain detained in naval jail custody. Consequently, a warrant issued to enforce the High Court’s sentence was returned unserved because the Governor’s order prevented its execution.

While the petitioner’s application for leave to appeal to the Supreme Court was being heard in the High Court, the issue of the unexecuted warrant was placed before the Court. A Special Bench of the High Court examined the validity of the Governor’s action and concluded that the Governor’s order was not invalid, that the order directing detention in naval custody was not unconstitutional, and that because the sentence had been suspended, the provisions of Order XXI, rule 5 of the Supreme Court Rules did not apply, making it unnecessary for the petitioner to surrender to serve his sentence. Thereafter the petitioner filed an application for special leave to appeal before the Supreme Court and an additional application seeking exemption from compliance with the aforementioned rule for the hearing of his special‑leave application without surrendering to his sentence. Initially he argued that, as a non‑free person, he could not comply with the rule, but he later amended his plea to contend that the rule did not apply because of the Governor’s suspending order. The judgment was delivered by a bench comprising Bhuvneshwar P. Sinha, J.L. Kapur, P.B. Gajendragadkar, K.N. Wanchoo, and K. Subbarao, and the case is reported as 1961 AIR 112 and 1961 SCR (1) 497, among other citations. The matters discussed involved the constitutionality of the Governor’s power of clemency under Articles 161 and 142 of the Constitution, the court’s power to grant bail or suspend sentences, and the harmonious exercise of those two powers.

After the High Court had declined to order his surrender, the petitioner proceeded to file two separate applications before the Supreme Court. The first application sought special leave to appeal the original judgment, while the second application asked that the requirement of Order XXI, Rule 5 of the Supreme Court Rules be waived for the purpose of hearing the special‑leave application, so that the petitioner would not have to present himself for surrender of the sentence while the petition was pending. The petitioner initially contended that, because he was not a free man, he could not possibly satisfy the conditions of Order XXI, Rule 5. Subsequently, however, he modified his submission and argued that the Rule should not apply to him at all, on the ground that the suspension of his sentence had been ordered by the Governor and therefore the Rule could not be invoked in his case.

The matter was referred by a Division Bench of the Supreme Court to a Constitution‑Bench for detailed consideration. The Court held that the Governor possessed no authority to suspend a sentence for the period during which the case was sub‑judice before the Supreme Court. The Governor’s order of suspension could operate only up to the point when the petition for special leave was filed, at which stage the Supreme Court assumed jurisdiction over the matter. From that moment onward, the Court would decide whether Order XXI, Rule 5 should be enforced or whether the petitioner should be exempted from its operation, as he had requested. Accordingly, the Court retained discretion to make any further orders it deemed appropriate, including the grant of bail, an order for surrender of the sentence, or any other order suitable to the circumstances. In arriving at this conclusion, the Court applied the principle of harmonious construction so as to avoid any conflict between the powers conferred by Article 161 on the Governor and those conferred by Article 142 on the Supreme Court, both of which are absolute within their respective domains. The Court therefore concluded that Article 161 does not cover the suspension of a sentence during the period when Article 142 is operative and the matter is sub‑judice before the Supreme Court. In a dissenting opinion, Justice Kapur expressed that the language of Article 161 is of the widest amplitude, describing it as a plenary act of grace and clemency, an absolute power of pardon exercisable at any time, and subordinate legislation made under Article 145 cannot override the constitutional provision. He further maintained that, when the same matter falls within the purview of both the Governor’s clemency power and the Court’s power under Article 142(1), the former must prevail, as the two powers operate in distinct fields based on wholly different principles and considerations. The dissent emphasized that the executive action, being a prerogative of mercy, should not be subjugated to judicial control in this context.

The Court observed that the exercise of an overriding executive power was not amenable to judicial review. It held that the framers of the Constitution could not have intended that the breadth of executive authority be limited so that it became suspended for the period during which an appeal was pending before the Supreme Court. The judgment then recorded the criminal appellate jurisdiction of the case, identified it as Criminal Miscellaneous Petition No. 320/60, and noted that the petitioner had applied for exemption from compliance with Rule 5 of Order XXI of the Supreme Court Rules of 1950, as amended. The hearing dates were listed as 18, 19, 20, 21 and 22 July 1960. Counsel appearing for the petitioner comprised S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra. For the State of Bombay, the Advocate‑General H. M. Seervai appeared, while Atul Setalved and R. H. Dhebar represented the respondent. During the proceedings, Chief Justice Sinha addressed the counsel and asked, “Do you dispute the power of the Court to make this rule?” The Advocate‑General responded affirmatively, stating, “No, My Lord.” He explained that the Court imposes a penalty in its judicial capacity whereas the Executive remits the penalty in its executive capacity, and that there was no clash between the two powers. He further asserted that the powers of the Executive do not collide with the powers of the judiciary, emphasizing that the prerogative of the King or the President could never be in conflict with the judiciary, the Executive or the Legislature. He described prerogatives as aids to the process of justice and characterized the power of pardon as plenary and unfettered, capable of being exercised at any stage after the commission of the offence, whether before indictment, during trial or after trial.

Chief Justice Sinha then inquired whether the power of pardon was exercised before trial. The Advocate‑General replied that pardon was given after the offence was proved. He cited United States practice, noting that the question of presidential intrusion into judicial power was never raised there. Chief Justice Sinha further illustrated with a hypothetical Indian case: a man convicted of murder and sentenced to life imprisonment, only to discover later that the deceased had died of natural causes or was found alive. The Court answered that a pardon would be granted, referencing section 401. He also cited United States cases—United States v. Wilson and Ex parte Wells—to show that the President could pardon a person convicted of a capital offence, and explained that a free and unconditional pardon extinguished the crime. The Court then referred to Section 426(1) of the Code, which empowered the Court to suspend a sentence or grant bail, and asserted that the three branches—Executive, Judiciary and Legislature—never paralyze each other, citing United States v. Klein and Ex parte Grossman. Subsequently, Justice Subba Rao remarked that the argument assumed that a valid Governor’s order would render the Supreme Court rule inapplicable, but noted that in the present case there was a conviction and sentence, the accused possessed no right of appeal, and had invited the Governor’s order. He observed that granting special leave to appeal was at the Supreme Court’s discretion and questioned why the Court should use its discretion to exempt the accused from the rule unless there were adequate reasons for the Governor to issue the order.

In this matter the Court observed that once a sentence has been suspended there is, in effect, no sentence pending, and consequently the Court is under no obligation to demand the accused’s surrender. The learned Judge Subba Rao noted that the provisions of Article 161 do not expressly state that the power conferred by that article may be exercised in spite of other constitutional provisions, and therefore questioned whether it was necessary to harmonise the authority under Article 161 with other constitutional powers such as those under Article 142. The learned Judge Kapur was then asked whether Indian courts possess any power to suspend a sentence. The Court answered affirmatively, but limited the power to the scope provided in Section 426 of the Code of Criminal Procedure. When pressed on the implication of a suspended sentence, Kapur clarified that a suspension means that there is no sentence to which surrender is required. The execution of a sentence, the Court held, is an executive function; the judicial role ceases once the sentence is pronounced, and the implementation of that sentence is carried out by the executive branch, as reflected in United States v. Benz, 75 L. Ed. 354 at 358. In the Indian context, the analysis began with Section 401 of the Code of Criminal Procedure, 1898, and Section 295 of the Government of India Act, 1935, establishing that pardon forms part of the constitutional scheme, as illustrated in Balmukand v. King‑Emperor, L.R. 42 I.A. 133. The Court reiterated that the exercise of prerogatives belongs to the executive and not the judiciary, citing Lala Jairam Das v. King‑Emperor, L.R. 71 A. 120, and emphasized that such powers serve the cause of justice. Subba Rao further argued that although one power operates in the judicial sphere and the other in the executive sphere, the Governor’s exercise of his authority under Article 161 encroaches upon the domain of the Supreme Court, which under the Constitution may entertain appeals, issue necessary orders, and, pursuant to its rules, suspend or stay the execution of a sentence. He suggested that where jurisdictional conflict arises between the judiciary and the executive, a harmonious approach should be sought, and questioned whether the Governor’s power should be limited to situations where no appeal is pending before the Supreme Court, asking if the executive may interfere with the judiciary during the pendency of a case. The Court answered that, in its administrative capacity, the executive may request the Advocate‑General to enter a nolle prosequi and thereby terminate a trial, a statutory power illustrated by Babu Lal Chokhani v. Emperor, [1937] 1 Cal. 464. It also noted that while the executive may suspend a sentence, as in State of Bihar v. M. Homi, [1955] 2 S.C.R. 78, the Supreme Court Rules—specifically Rule 5 of Order XXI—represent a settled practice but cannot impinge upon the unfettered power of pardon or the exercise of executive prerogatives. The Court affirmed that under Articles 72 and 161 the President’s prerogative is not subject to any parliamentary legislation and that the Constitution imposes no express or implied limitation on Articles 72 or 161, as observed by the learned author Hari.

In the case cited as Vishnu Kamath v. Syed Ahmad Ishaque, [1955] 1 S.C.R. 1104, the Court observed that the powers of the judiciary and the Executive are distinct and separate, with the Executive acting only after the Court has completed its function. A question was raised by Justice Kapur concerning whether the Supreme Court could suspend a sentence. The Court answered affirmatively, stating that while the Supreme Court may grant bail, it also possesses the authority to stay the execution of a sentence. Justice Kapur further inquired whether the condition imposed on Commander Nanavati was illegal; the Court noted that no suggestion of illegality had been made. The Court explained that it may, on judicial grounds, hold that a convicted person should remain in prison, yet the President, exercising the power of mercy, may order the individual's release, as illustrated in King v. S. S. Singh, I.L.R. 32 Pat. 243. The Court emphasized that the prerogative power of the President is considerably broader than the judicial powers of the Court, and that the phrase “at any time” in section 401 of the Code of Criminal Procedure reflects this principle.

Justice Gajendragadkar was asked whether the naval authorities could lawfully keep the petitioner in naval custody. The Court observed that the naval authorities had not requested such custody; the Governor ordered it and the navy did not object. Consequently, there was nothing illegal about the arrangement, and it was deemed perfectly lawful. The Court noted that the validity of the Governor’s order had not been examined before the constitutional bench, and it distinguished between “illegal,” which the law expressly forbids, and “unlawful,” which the law does not recognise. Justice Sinha clarified that an unlawful act may become lawful by consent, but an illegal act cannot be rendered legal by consent. Without any complaint from the parties, the Governor’s order could not be held illegal. The navy’s acceptance of the order suggested a customary usage under section 3(3)(12) of the Navy Act, and no provision in that Act prohibited such custody. Regarding the Provost Marshal’s custody of the petitioner without an express provision, the Court referred to section 14 of the Navy Act and observed that a naval officer in service, such as Commander Nanavati, is distinct from a private person and cannot simply leave naval service.

Justice Subba Rao discussed two approaches to reconciling the Governor’s powers under article 161 with the Supreme Court’s powers under articles 142, 144, and 145. One approach posits that the Supreme Court lacks power when the Executive exercises its authority; the other holds that while both possess powers, the Executive has exclusive authority over pardon and remission, whereas, concerning suspension, the Executive may not issue an order that interferes with the Supreme Court’s jurisdiction when proceedings are pending. The discussion concluded by emphasizing the importance of aligning these powers in the interests of justice.

In the proceedings before it, the Court first affirmed that it possessed the authority to issue any order that it considered appropriate under the Constitution. It explained that the power granted to the Supreme Court by Article 141 is a general power that may be exercised in all cases, whereas the power conferred on the Governor by Article 161 is a special power that is confined to particular circumstances. The Court observed that when a general power and a special power appear to be in conflict, the special power normally prevails, although the Court also expressed the view that it did not accept that a genuine conflict existed in the present situation. Counsel representing the Union, counsel for the State of Punjab and counsel for the Attorney General of India each submitted that there was no conflict at all. The Court agreed with this submission, holding that the power of the Supreme Court is a judicial power, while the Governor’s power is an executive power, and therefore the two powers cannot collide. Nevertheless, the Court cautioned that the Supreme Court may exercise its judicial power, but it should not disregard the executive power, and that both powers ought to be harmonised wherever possible to preserve the constitutional balance.

Amicus curiae then addressed the nature of the Supreme Court’s procedural authority. It pointed out that, under Article 129, the Supreme Court is a Court of record and consequently enjoys the constitutional privilege of prescribing the procedure it will follow when exercising the discretion vested in it by the Constitution. By virtue of Article 145, the Court has the constitutional authority to formulate rules that impose conditions for the admission of a special leave petition. The amicus argued that the rule in question is made under the Court’s constitutional right as a Court of record and not under legislation enacted pursuant to Article 245. It noted that subordinate legislation presupposes a rule made under a law enacted under Article 245, and that this analogy cannot be applied to rules framed under Article 145. Although the rules made by the Supreme Court under Article 145 require the President’s approval, the amicus maintained that such approval does not transform the rules into a law made under Article 245. The amicus further explained that the specific rule framed by the Supreme Court requires that a special leave petition be filed only if the petitioner surrenders to the authority of the Supreme Court, and that by issuing the order under consideration the Governor had, in the Court’s view, deprived the Supreme Court of its authority over the custody of the accused while the special leave petition was pending.

The Court then turned to the interaction between the Governor’s powers and the Supreme Court’s jurisdiction. It observed that Article 161, read together with Article 154, makes clear that even when the Governor is exercising his constitutional powers, he cannot affect, modify or override the powers of the Supreme Court or the procedure prescribed by it. Once a special leave petition is presented to the Supreme Court or once the appeal is admitted, the Court has ample jurisdiction to grant relief, including the suspension of a sentence, under Article 141 and the rules made thereunder. The power to suspend a sentence is not exercisable by the Executive when such relief can be granted by the trial Court or by a competent appellate Court. The Court held that a proper construction of the rule indicates that the Governor’s powers under Article 161 operate only up to the stage when an application for special leave is made under Article 136, and that thereafter they cannot interfere with the Supreme Court’s authority. Assuming, without admitting, that the Governor could interfere with the Supreme Court’s jurisdiction, the Court said such interference could occur only if a valid order were made under Article 161, a circumstance that did not arise in the present case.

The order issued under Article 161 was held to be illegal because it was made subject to a condition that itself was unlawful; consequently the order was characterised as an illegal order. Even assuming that the condition were not illegal, the Court observed that the condition had been imposed only through the petitioner’s voluntary consent, and that the purpose of such consent was to avoid compliance with the Supreme Court’s rule. Accordingly, the Supreme Court would refuse to exercise its discretion in favour of a petitioner who, by his own voluntary act, placed himself outside the Court’s jurisdiction. Article 144 obliges the Governor to assist the court in the exercise of its jurisdiction, and the Court indicated that the petitioner could approach the Government to seek modification of the Governor’s order so that he might be able to follow the Supreme Court’s procedure. The judgment then recorded a series of observations and questions posed by the judges. It was noted that the appellate Court possesses the power to suspend a sentence under Article 142, and that the Executive may intervene at any stage during the trial, as illustrated by the case of State of Bombay v. United Motors (India) Ltd., reported in 1953 S.C.R. 1069. The petitioner's argument that no sentence was in operation and therefore nothing could be surrendered was rejected, with the Court stating that the petitioner must surrender to his sentence. A conflict was identified between the Executive's position, which claimed that the petitioner need not surrender and would remain in another form of custody, and the Governor’s order extending the period of suspension until the decision of the petitioner's appeal, which clashed with the Supreme Court’s rule. The Court affirmed that the Supreme Court cannot suspend a sentence when it has refused bail; suspension is distinct from a pardon, the former being permissible only after a sentence has been imposed. H. M. Seervai submitted that nothing in Articles 142, 145 or in sections 411 and 426 of the Code of Criminal Procedure overrides the Governor’s power to grant reprieve, because the Code itself confers powers of suspension, bail and related relief. The judgment also recorded that the Federal Court formerly possessed the power to grant bail or stay the execution of a sentence, although such power was not absolute. Finally, it was held that while the Executive is bound to execute the Court’s orders, if the Government, after a Court order, issues its own order suspending the sentence, the Executive then lacks authority to carry out the Court’s order, as illustrated by earlier authorities such as United States v. Benz and Rogers v. Peck.

In this case, the matter was placed before the Supreme Court on 5 September 1960. The judgment of the Court was delivered by Chief Justice Sinha, who was joined by Justices Gajendragadkar, Subba Rao and Wanchoo, while Justice Kapur pronounced a separate judgment. Chief Justice Sinha explained that the case had been referred to a Constitution Bench because of extraordinary circumstances that would become clear from the facts. The central question before the Bench was to determine the exact content of the power conferred on a State Governor by Article 161 of the Constitution of India and to examine whether the order issued by the Governor of Bombay on 11 March 1960 infringed upon the judicial authority of this Court, particularly with respect to the Court’s powers under Article 142. For the purpose of resolving this constitutional issue, it was unnecessary to delve into the substantive merits of the criminal prosecution against the petitioner; a concise statement of the factual background was sufficient to appreciate the nature of the Governor’s order that was being challenged.

The petitioner occupied the post of Second in Command of the naval vessel N. S. Mysore, which arrived in Bombay at the beginning of March 1959. On 27 April 1959, he was arrested on a charge of murder punishable under section 302 of the Indian Penal Code. The following day, 28 April 1959, he was produced before the Additional Chief Presidency Magistrate of Greater Bombay in connection with that charge. The magistrate ordered that the petitioner be remanded to police custody on that same day. On 29 April 1959, the magistrate received a letter from the Flag Officer, Bombay, stating that the Navy was prepared to take the accused into naval custody as defined in section 3(12) of the Navy Act, 1957, and that the accused would continue to be detained under the authority of the Naval Provost Marshal in exercise of powers conferred by sections 89(2) and (3) of the same Act. Accordingly, the magistrate issued an order directing that the accused be detained in the Naval Jail and Detention Quarters in Bombay, and he noted in his order that he was acting under instructions from the Government of India. The petitioner thereafter remained in naval custody throughout the subsequent proceedings.

Later, the petitioner was brought before the Sessions Judge of Greater Bombay for trial. The trial was conducted by a jury, which returned a verdict of not guilty by an eight‑to‑one majority. Dissatisfied with the jury’s decision, the Sessions Judge exercised the power granted by section 307 of the Criminal Procedure Code to refer the matter to the High Court for reconsideration. The reference, recorded as Criminal Reference No. 159 of 1959, was heard by a Division Bench of the Bombay High Court. The High Court accepted the reference, found the petitioner guilty of murder under section 302 of the Indian Penal Code, and imposed a sentence of life imprisonment in its judgment dated 11 March 1960. On that same day, the Governor of Bombay issued an order, the text of which follows in the subsequent portion of the judgment.

In exercising the powers granted to him by Article 161 of the Constitution of India, Shri Prakasa, Governor of Bombay, issued an order stating that he was pleased to suspend the sentence imposed by the High Court of Bombay on Commander K. M. Nanavati in Sessions Case go 22 of the IVth Sessions of 1959 until the appeal that the commander intended to file in the Supreme Court against his conviction and sentence was finally disposed of, and that, subject to that suspension, the commander should remain detained in the Naval Jail custody at N. S. Kunjali. Following the High Court’s judgment, a writ was transmitted to the Sessions Judge of Greater Bombay to inform him of the High Court’s conviction and sentencing of the petitioner. The Sessions Judge then issued a warrant for the arrest of the accused and forwarded it to the police officer in charge of the City Sessions Court for Greater Bombay for execution. The warrant was returned unserved with a report indicating that it could not be executed because of the Governor’s order suspending the sentence. Consequently, the Sessions Judge returned the writ together with the unexecuted warrant to the High Court. Meanwhile, an application for leave to appeal to the Supreme Court was filed shortly after the High Court’s judgment, and the matter was scheduled for hearing on 14 March 1960. On that date, the issue of the unexecuted warrant was presented before the Division Bench, which, noting the unusual and unprecedented situation created by the Governor’s order, directed that the matter be referred to a larger Bench. Notices were therefore issued to the State of Bombay and to the accused. A Special Bench composed of five judges of the High Court then heard the case. The Special Bench permitted two counsel, Mr Kotwal and Mr Pranjpe, to appear on behalf of the Western India Advocates’ Association, and also allowed Mr Peerbhoy, together with Mr Latifi, to appear on behalf of the Bombay Bar Association as amicus curiae, because the Advocate General for the State of Bombay and the counsel for the accused were both supporting the Governor’s order. In view of the great importance of the issues involved, the Court authorized those advocates to present the opposite viewpoint. The Advocate General of Bombay, who also acted as counsel for the accused, objected to the participation of those advocates on the ground that they lacked locus standi. He further raised a preliminary objection, contending that the Special Bench had no jurisdiction to examine the validity of the Governor’s action because no judicial proceeding was then pending, the criminal reference having been already disposed of and neither party having raised any grievance against the Governor’s order.

In this matter, the reference that had originally involved the State and the accused had already been concluded, and none of those parties had reported any grievance or objected to the Governor’s order that was being challenged before the Court. The Court dismissed that objection because the writ that had been issued by the Court was returned without being executed, and the reasons for that return could be examined by the Court to determine whether the warrant had been properly returned. Subsequently, the High Court examined whether the Governor’s action was valid. The High Court held that it possessed authority to assess the scope of the Governor’s power under Article 161 of the Constitution and to decide whether that power had been exercised lawfully in the present case. After a detailed consideration of the issues before it, the Special Bench concluded that the Governor’s order was not invalid. The Bench also ruled that the condition requiring the petitioner’s detention in naval custody, although the accused could not legally be held in a Naval Jail under the Navy Act after his conviction by the High Court, was not unconstitutional. The Court further rejected the argument advanced by the amici curiae that the Governor’s order interfered with the Supreme Court’s jurisdiction, specifically with reference to rule 5 of Order XXI of the Supreme Court Rules, the text of which is reproduced later. The High Court explained its reasoning by stating that, because the sentence imposed on the accused had been suspended, the accused was not required to surrender to serve the sentence, and therefore Rule XXI, rule 5, did not apply. The High Court also dismissed the allegation of mala‑fides. Consequently, the High Court held that, since the Governor’s order had not been demonstrated to be unconstitutional or contrary to law, the warrant should not be reissued until the appeal filed in the Supreme Court had been determined, unless the Governor’s order is cancelled or withdrawn before that time. The petitioner filed a petition for special leave in this Court on 20 April 1960 and, on 21 April 1960, made an application under Order XLV, paragraphs 2 and 5 of the Supreme Court Rules seeking exemption from compliance with Order XXI, rule 5. In his petition, the petitioner asserted that immediately after his arrest he had remained in naval custody throughout the trial before the Sessions Court and during the reference heard by the High Court, that he had consistently exhibited good conduct, and that he was prepared to obey any direction of this Court, but that the petitioner

Because the petitioner was not a free man, the Court recorded that he could not obey the requirement of rule five of Order XXI of the Supreme Court Rules. Accordingly, he prayed that he be exempted from complying with that rule and that his petition for special leave to appeal be listed for hearing without his having to surrender to his sentence. On 25 April 1960, the special leave petition together with the application for exemption was placed before a Division Bench, which issued an order. The order stated that the petition sought special leave against the judgment of the Bombay High Court on reference, which had convicted the petitioner under section 302 of the Indian Penal Code and sentenced him to life imprisonment. The order noted that, together with the petition for special leave, the petitioner had filed an application asking to be exempted from surrendering under rule five of Order XXI of the Supreme Court Rules. In that application, the petitioner contended that he was ready and willing to obey any direction of the Court but, because of an order issued by the Governor of Bombay under article 161 of the Constitution, he was not a free man and therefore could not comply with the rule. The Division Bench observed that this contention raised an important constitutional question concerning the scope and extent of the powers conferred on the Governor by article 161. The Bench held that such a question should be decided by a Constitution Bench of the Supreme Court. Consequently, it directed that notice of the application be served on the Attorney General and on the State of Bombay, and that the papers be placed before the Chief Justice so that, after consultation with the parties, the Chief Justice could schedule the matter for hearing before the Constitution Bench.

Following the Court’s order, it appeared that on 6 July the petitioner executed an affidavit in Bombay. In that affidavit, he declared that his earlier application for exemption from compliance with rule five of Order XXI had been founded on a misapprehension of the legal position. He asserted that the true position had been clarified in the judgment of the Special Bench of the Bombay High Court, which held that rule five of Order XXI did not apply to his case because of the Governor’s order. On that basis, he requested that his special leave petition be listed for admission. The record showed that this alteration in the petitioner’s stance regarding the necessity of surrender was an after‑thought. The change occurred after the Division Bench had already directed that the constitutional issue be placed before a Constitution Bench as a preliminary matter. This sequence of events formed the background of the matter as it reached the Supreme Court.

In this matter, before the counsel for the State of Bombay and the Additional Solicitor‑General representing the Union of India were heard, the Court asked Shri J. B. Dadachanji, the petitioner’s advocate, whether the petitioner was willing to obtain a release from the Governor’s order so that he could appear before the Court and allow his special leave petition to be heard in the normal procedural course. Shri Dadachanji was unable to give a definitive answer and expressed a preference for the constitutional question to be decided on its substantive merits. The Court was assisted by Mr C. B. Aggarwala, who appropriately offered his services as amicus curiae to present the opposite perspective. In the present Court, as had occurred in the High Court, there was no party before the Court that challenged the validity of the Governor’s order; the presence of an amicus curiae was therefore necessary to articulate the contrary view. Both in the High Court and now before this Court, it was the Court itself that ordered the issue to be framed as a preliminary question before the merits of the petitioner’s case could be examined. The Advocate General of Bombay argued with his characteristic vigor and clear expression that the power of pardon—encompassing the lesser powers of remission and suspension of a sentence—is a plenary, unrestricted authority. He maintained that such power must not be exercised routinely but only in special circumstances that require the intervention of the Head of the Executive, and that it may be exercised at any time after an offence has been committed. He further explained that this power, being an exercise of sovereign authority, resides in the Head of State and has, in certain respects, been modified by statute. The Advocate General contended that the power of pardon may be exercised either unconditionally or subject to conditions imposed by the authority, provided those conditions are not illegal, impossible to perform, or contrary to public policy. He added that the power of pardon is an expression of sovereign authority vested in the Head of State irrespective of the system of government. Accordingly, he noted that the President of the United States of America, the Governors of the United States, and, in some instances, designated committees possess such powers, which cannot be overridden by legislation. Regarding India, he observed that before the Constitution came into force, these powers were regulated by statutes while remaining subject to the Crown’s prerogative. After the Constitution’s enactment, the power resides in Article 72 for the President and Article 161 for a State Governor. Both Articles are expressed without any limiting language, unlike the powers conferred on the Supreme Court by Articles 136, 142, 145 and other constitutional provisions, indicating that what was once a Crown prerogative has now been incorporated into Indian law.

The Court observed that the prerogative once exercised by the Crown has now become part of the common law of England and of statute law in India. For illustration, it cited section 401 of the Code of Criminal Procedure and Articles 72 and 161 of the Constitution. It emphasized that there are two distinct powers: the executive power to grant pardon in its full sense, and the judicial power. These powers are entirely separate and there can be no question of a conflict between them because they are fundamentally different; the pardon power belongs to the executive, whereas judicial authority lies with the courts. The Court described the power of pardon as an executive action that is exercised to aid justice rather than to oppose it. Regarding the specific issue before the Court—namely, whether the exercise of the executive power of pardon contained in Articles 72 and 161 interferes with the judicial functions of this Court—the argument was advanced that Rule 5 of Order XXI of the Court’s Rules presupposes the existence of a sentence of imprisonment. In the present case, because the Governor’s order suspended the sentence, no imprisonment was actually running, and therefore there could be no intrusion of the executive power into the judicial domain. Rule 5 reflects the settled practice of this Court and of other courts that a person who has been convicted and sentenced to imprisonment must not be held in contempt of a court order by attempting to proceed to an appellate court without first serving the sentence. The Court held, however, that this rule did not apply to the petitioner because his sentence had been suspended; consequently he was not contemptuous of any order of this Court or of the High Court. The Court noted that the power of the Supreme Court to make procedural rules is limited by two constraints: it must not conflict with any law made by Parliament, and it requires the President’s approval. By contrast, Articles 72 and 161 confer plenary, unrestricted powers on the sovereign State to grant pardon, and these powers are not subject to any statutory limitations. Accordingly, the Court concluded that no conflict could arise between the Court’s rule‑making authority and the executive’s pardon power. Even if a conflict were imagined, the limited authority of the Court would have to yield to the unlimited authority of the Executive. Concerning the condition imposed by the Governor that the petitioner’s sentence be suspended, the Court found that the condition was not illegal because it did not contravene any mandatory or peremptory legal provision. The Court clarified that a condition’s lack of express authorisation does not automatically render it illegal; illegality requires that the condition do something that the law expressly forbids. The Court referred to various sections of the Indian Navy Act (Act LXII of 1957) and observed that none of those provisions were breached by the condition attached to the Governor’s suspension order.

The Court observed that the condition which the Governor had attached to the order suspending the petitioner’s sentence was not illegal. It further noted that the petitioner had submitted to the naval custody in which he continued to be held, and that a consent given by the petitioner could not be unlawful even if it had not been expressly authorised by statute. The petitioners also argued that the High Court’s remark in the final paragraph of its judgment was wholly unwarranted. They maintained that, once the High Court had held that the Governor’s order was not unconstitutional, the High Court had no authority to add observations suggesting that the Governor had acted improperly. It was submitted that the Governor’s power was not subject to any conditions or justification, and therefore the High Court could not even suggest that the Governor should not have issued the order in question. The learned Additional Solicitor General supported the arguments of the Advocate General and submitted that there was no conflict between Articles 142 and 161 of the Constitution. Counsel for the petitioner, Mr C B Aggarwala, whose assistance the Court acknowledged, contended that the Supreme Court’s rule‑making power is not a mere statutory power but a constitutional privilege. He argued that only the Supreme Court may frame rules and conditions governing applications for special leave to appeal, and that the rule governing the present case was made under the Court’s constitutional authority under Article 145. Accordingly, he said, the Advocate‑General was incorrect in describing that rule as subordinate legislation. He further explained that the requirement of Presidential approval for rules made by the Court under Article 145 does not convert those rules into legislation made under powers conferred by Article 123 or Article 245. The purpose of Rule 5 of Order XXI of the Court’s Rules, he explained, is to ensure that a petitioner or appellant remains under the direction of the Court. He asserted that the Governor’s order had effectively taken away the Supreme Court’s authority over the custody of the convicted person, and that power exercised under Article 161 must be exercised within the limits laid down by Article 154. It was also submitted that the petitioner could have obtained relief directly from the Supreme Court by filing an application for special leave, and that in such circumstances the Executive should not have intervened. In other words, the contention was that, just as courts of equity intervene to achieve justice where law is insufficient, the Executive should exercise its power only when the courts are not already equipped with adequate authority to grant the needed relief.

In the case, counsel argued that a proper interpretation of the relevant statutory provisions and the Constitution indicated that the authority of the Governor was confined to a single, limited stage. According to that view, the Governor could only suspend the operation of a sentence until the petitioner obtained special leave before the Supreme Court. After the Supreme Court received the petition, it alone possessed the power to either grant bail or to refuse it. Once the Supreme Court issued an order regarding bail, the argument continued, the Governor was under no authority to interfere with or override that judicial order. The submission was that any further intervention by the Governor after the Supreme Court’s decision would transgress the constitutional allocation of powers and would be impermissible.

Another line of argument presented a different perspective. It was contended that even if one assumed that the Governor might have the capacity to issue a suspension order during the pendency of the petition for leave to appeal, such an order could be lawfully made only by the President and not by the Governor. The counsel further maintained that, regardless of the point of view adopted, the Governor might be able to issue an order contemplated by Article 161, but he could not impose a condition of the sort that had been attached in the present case, because that condition was illegal. Additionally, it was submitted that the broad language employed in Section 401 of the Criminal Procedure Code must yield to the more specific provisions of Section 426 of the same Code. In other words, when an appeal is pending or is intended to be filed, the responsibility for granting bail or making related judicial decisions rests with the trial court or the appellate court during that limited period, and the appropriate Government must refrain from exercising any power that would disturb that judicial function.

Before addressing the principal question concerning the extent of the power that Article 161 of the Constitution confers upon the Governor, the Court found it useful to review the general law of pardon, which forms the backdrop of the dispute. The doctrine of pardon has long been recognized as a prerogative historically vested in the sovereign, irrespective of whether sovereignty resides in an absolute monarch, a popular republic, or a constitutional monarch. Sovereignty has always been linked with the source of power, encompassing the authority to appoint or dismiss public servants, to declare war and conclude peace, to legislate, and to adjudicate disputes. Historically, the King—understood in the widest sense—symbolized the sovereignty of the State, from which emanated all power, authority, and jurisdiction. As kingship was once regarded as divinely ordained, an absolute king found no difficulty in asserting and exercising a divine right to govern, a right that included ruling, administering, and dispensing justice. The historical record shows that this claim of divine right formed the basis of the monarch’s authority to grant pardons.

In the historical development of English constitutional law, the struggle between the Stuart monarchs and the Parliament, which claimed to represent the voice of the people, created a fundamental conflict. The Court acknowledged that this conflict, pitting the King—who embodied absolute authority in every respect—against Parliament, which acted as the defender of popular liberty, eventually produced a constitutional arrangement in which the King remained the formal head of the Government. In theory the monarch retained the supreme power to appoint officials, yet in practice the legislative function was exercised by Parliament, the executive authority was vested in the members of the Government who together formed the Cabinet, and the judicial function was performed by a Judiciary appointed by the Government in the name of His Majesty. Accordingly, the monarch, whether His or Her Majesty, continued to make appointments of the highest judges, of the members of the Government, and of other public servants, all of whom held office at the pleasure of the sovereign.

The Court explained that the long‑run effect of these historical processes was the emergence of a clear division of governmental functions into three distinct branches: the executive, the legislature, and the judiciary. This division gave rise to the doctrine known as the “Rule of Law,” a principle celebrated in Great Britain and highlighted by Professor A. V. Dicey. The Rule of Law, contrasted with the rule of a single man, encompassed the absence of arbitrary power, the requirement that all persons be subject to the ordinary law of the land, and the guarantee of equal protection under those laws. As a consequence of the same historical development, the formerly unlimited and arbitrary power of the monarch was channelled into the three separate wings of Government. Over time, each of those wings—executive, legislative, and judicial—experienced a progressive increase in power, authority, and jurisdiction, while the monarch’s absolute and arbitrary power correspondingly diminished.

The Court observed that the prerogatives of the Crown in England, once broad and varied, had been steadily curtailed as the three branches of Government grew in strength. Although, in theory, many of those prerogatives remained vested in the Crown, in practice they were now exercised on behalf of the Crown by the Executive, the Legislature, and the Judiciary. This redistribution of the sovereign’s former absolute power among the three branches had become the accepted norm of constitutional governance, and the remaining prerogative could be exercised only to the extent permitted by law.

The Court then referred to the landmark decision of the House of Lords in Attorney General v. De Keyser’s Royal Hotel, Limited (1), which concerned the Crown’s assertion of a prerogative right to take possession of private property for administrative purposes related to the defence of the realm. The House of Lords held that the Crown could not, by virtue of its prerogative or any statutory authority, appropriate a citizen’s property for such purposes without providing compensation for its use and occupation. In that case, Sir John Simon, K. C., appeared for the respondents and submitted that “the prerogative has been defined by a learned author.”

The Court observed that the Royal Prerogative has been described as “the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.” It further explained that this prerogative constitutes the ultimate resource of the executive, but when a statutory provision expressly covers the same subject matter, there is no longer any room for the exercise of the Royal Prerogative. The Court noted that the prerogative is consequently displaced by necessary implication because the two rights cannot coexist, as recorded on page 518 of the Report. The Court pointed out that this line of argument advanced by the respondents was apparently accepted by Lord Dunedin, who delivered the leading opinion of the House and remarked that “the prerogative is defined by a learned constitutional writer as ‘the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.’” Lord Dunedin added that, since the Crown is a party to every Act of Parliament, it is logical to consider that when an Act deals with a matter previously within the prerogative and expressly empowers the Crown to act subject to conditions, the Crown thereby assents to the curtailment of the prerogative, a view cited on page 526 of the Report. The Court further referred to the authority of Halsbury’s Laws of England, volume 7, third edition, page 221, which states that “the prerogative is thus created and limited by the common law, and the Sovereign can claim no prerogatives except such as the law allows, nor such as are contrary to Magna Carta, or any other statute, or to the liberties of the subject. The courts have jurisdiction, therefore, to inquire into the existence or extent of any alleged prerogative.” The Court then indicated that it had briefly set out the history of the genesis and development of the Royal Prerogative of Mercy because counsel for the petitioner, Mr Seervai, had strongly emphasized that the Royal Prerogative of Mercy is wide and absolute and may be exercised at any time. Counsel presented very elaborate arguments on that aspect and cited several English and American decisions. While acknowledging that the power to suspend a sentence forms part of the larger power of granting pardon, the Court observed that the controversy raised by the present petition was confined to a very narrow compass. Consequently, the Court held that concentrating on the purportedly wide and absolute character of the power to grant pardon, and overly emphasizing judicial decisions dealing directly with that broader question, would not be helpful for the present purpose. In fact, the Court apprehended that an elaborate discussion of the scope and effect of the larger power, in light of the relevant judicial decisions, would likely create confusion and distract attention from the essential features of the narrow issue that required consideration.

In view of the narrow issue that required determination, the Court elected not to discuss the broader topic concerning the absolute character of the power to grant pardon, nor to refer to the numerous decisions previously cited on that subject. The Court therefore turned to the law as it existed in India from the time the Code of Criminal Procedure was enacted in 1898. Under Section 401 of that Code, the executive possessed the authority to suspend the execution of a sentence or to remit the whole or any part of a punishment, either without conditions or subject to any conditions that the sentenced person accepted. Section 402 conferred on the executive, without the consent of the sentenced individual, the power to commute a death sentence to life imprisonment and to alter other sentences to less stringent forms. In addition, the Governor‑General had been delegated the prerogative powers of His Majesty to exercise these functions. Sub‑section (5) of Section 401 expressly stated that nothing in that provision should be taken to affect the right of His Majesty, or of the Governor‑General when that right was delegated, to grant pardons, reprieves, respites or remissions of punishment. This legal position remained in force until the Constitution of India came into operation. The Constitution introduced two provisions to embody the former royal prerogative related to pardon: Article 72 and Article 161. Article 72 vests in the President the power to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence. Article 161 confers a similar power upon the Governor of a State with respect to offences against any law relating to matters within the executive domain of that State. Sections 401 and 402 of the Code have been retained, with the necessary modifications, so that they align with the constitutional provisions of Articles 72 and 161. It is evident that Articles 72 and 161 not only incorporate the traditional royal prerogative of pardon and reprieve, but also assimilate the powers enumerated in Sections 401 and 402 of the Code. Moreover, the Code contains Sections 337 and 338, which provide for offering a pardon to an accomplice under specific conditions. The present case principally concerned the extent of the pardon power vested in the State, as exercised by the Governor under Article 161. Article 161 reads: “The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.” Although Article 161 does not expressly refer to Article 72, the Governor’s pardon authority overlaps the President’s authority to a certain degree, particularly in matters involving the commutation of a death sentence.

In this matter the Court observed that the power to grant a sentence of death could be exercised under both Articles 72 and 161, each of which was framed in very broad language. Consequently, it was submitted that neither article was limited by any explicit restriction and that the spheres in which each authority – the President and the Governor of a State – could act were delineated separately. The submissions further maintained that the exercise of the pardon power under these two articles was not constrained by the provisions of Articles 142 and 145 of the Constitution or by any other statute. Article 142(1) was quoted in full: “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.” The Court noted that this provision consisted of two parts: the first part conferred upon the Court the authority, within its jurisdiction, to issue any decree or order required to achieve complete justice in the case before it; the second part dealt with the manner of enforcement of such decree or order. Article 145 was described as empowering the Court, with the President’s approval, to formulate rules governing the general practice and procedure of the Court. The Court emphasized that the rules framed under Article 145 served to assist the power granted by Article 142 to pass any decree or order necessary for complete justice. In this connection, Rule 5 of Order XXI of the Supreme Court Rules, made under Article 145, was cited, which reads: “Where the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Unless the Court otherwise orders, the petition shall not be posted for hearing until the petitioner has surrendered to his sentence.” The Court explained that this rule had been introduced into the Supreme Court Rules the previous year and merely codified an existing practice of the Supreme Court, a practice that was also followed by the High Courts. That practice, the Court said, rested on a sound principle long recognized by the Full Bench of the High Court of Judicature, North Western Provinces, in the 1870 case of The Queen v. Bisheshar Pershad. In that case no conviction order had been passed; only a warrant had been issued against the accused. Because the warrant remained unserved, a proclamation was issued and the accused’s property was attached with a view to compel surrender. The Court noted that the validity of the warrant had been challenged before the High Court, which refused to entertain the petition until the accused surrendered, holding that he was in contempt of a lawfully constituted authority. The accused subsequently surrendered in compliance with the High Court’s order, and the matter was then decided on its merits. The Court concluded that the rules made under Article 145 are merely aids to the powers of the Court under Article 142, and the principal issue for determination was whether a suspension order issued by the Governor under Article 161 could operate when the Supreme Court had been approached for special leave to appeal the judgment and order of the High Court. The Court further observed that once the petitioner filed a petition for special leave, the matter became sub‑judice before the Supreme Court, and under its own rules the Court could require the petitioner to surrender to his sentence as a condition precedent to hearing his petition, although it retained the discretion to dispense with that requirement.

The High Court had been approached with a petition that was challenged before it. The High Court declined to consider the petition until the petitioner had surrendered, holding that the petitioner was in contempt of a lawfully constituted authority. Accordingly, the accused complied with the High Court’s order and surrendered. After his surrender, the High Court proceeded to examine the case on its merits. The judgment then turned to the question of whether procedural rules made under Article 145, which are merely auxiliaries to the Supreme Court’s powers under Article 142, could affect the operation of a suspension order issued by the Governor under Article 161 while a special leave petition was pending before the Supreme Court. The moment the petitioner filed a petition for special leave to appeal, the matter became sub‑judice before the Supreme Court. Under its own rules, the Supreme Court could have required the petitioner to surrender his sentence as a condition precedent to hearing the special leave petition; however, the Court also possessed the discretion to dispense with that requirement or to exempt the petitioner in appropriate circumstances. It was undisputed that the Supreme Court had the authority to stay the execution of a sentence and to grant bail pending the disposal of the special leave application. Although Rule 28 of Chapter XXI of the Supreme Court Rules did not expressly address that interval, the Court’s power under Article 142 of the Constitution to make any order necessary to achieve complete justice was not contested. Consequently, even while the special leave petition remained pending, the Court could, under Article 142, grant bail or issue any other order it deemed necessary for the ends of justice. Counsel argued that Article 161 placed no explicit limitation on the Governor’s power, and that Section 401 of the Code of Criminal Procedure likewise was expressed in broad terms, thereby allowing the Governor to suspend the execution of a sentence even while the matter was pending before the Supreme Court. In effect, both the Governor and the Supreme Court appeared to possess overlapping authority to suspend a sentence. This overlap raised the issue of how the scope of the Governor’s power under Section 401 compared with the appellate court’s power under Section 426, which authorises a court, when an appeal is pending, to suspend the sentence or to release the appellant on bail. The language of Section 426, as will be examined, suggests certain limitations and reasons for its exercise.

When a court records its decision in writing, it has the authority to either suspend the execution of a sentence or, if the accused is already detained, to release that person on bail or on his own bond. Section 401 is placed in Chapter XXIX, which is titled “of suspensions, remissions and commutations of sentences”. Because of this placement, Chapter XXIX deals only with certain powers that the Governor may exercise under Article 161 of the Constitution and does not encompass the full range of gubernatorial powers. In contrast, Section 426 is situated in Chapter XXXI, which carries the heading “of appeal, reference and revision”. Consequently, Section 426 is intended specifically for circumstances in which an appeal is pending and the appellate court has taken possession of the case, thereby giving the court the discretion to pass any order it considers appropriate, including the suspension of a sentence. This distinction shows that Chapter XXIX, which contains Section 401, addresses situations where no appeal is contemplated, whereas Chapter XXXI, containing Section 426, operates only when an appeal is in progress. In other words, Chapter XXIX applies to individuals who have been sentenced for an offense in general terms, while Section 426 applies to a narrower, special situation and therefore falls outside the reach of Section 401. The learned Advocate General argued forcefully that the phrase “at any time” in Section 401 indicates that the power may be exercised without any temporal limitation. However, within the context of Section 401, “any time” can refer only to moments after a conviction, because a sentence does not exist before a conviction. The question therefore arose whether the provision covers the entire period following the conviction and sentencing, even when an appeal is pending and Section 426 is available to the appellant. It is clear that Section 426 is as unrestricted by other provisions of the Code as Section 401, the only difference being that the powers under Section 426 may be exercised solely by an appellate court while an appeal is pending. When both provisions are unfettered, they must be read in harmony so that no conflict occurs. This harmonisation is achieved by interpreting Section 426 as governing the special case limited to the period when the appeal is before an appellate court, while Section 401 governs the remaining period after conviction. This interpretation creates no difficulty and does not diminish the executive powers granted by Section 401. Although the words “at any time” stress that Section 401 can be exercised without a time limit, they do not imply that the power may be used while the same matter is already being dealt with by the court under Section 426. Turning to Articles 142 and 161, the counsel for Mr Seervai argued that…

Although the Court possessed the authority to suspend a sentence or to grant bail while a special leave petition was being heard, that authority did not diminish the executive’s power to grant a pardon, the term being understood in its fullest sense as previously explained. The Court referred to the case of Balmukand and others v. The King Emperor (1915) 42 IA 133 in this context. In that case a convicted individual had applied to His Majesty in Council for special leave to appeal, and the issue that arose concerned whether the executive could suspend the sentence during that process. Lord Haldane, then a Law Lord, observed that the Board could not intervene to stay the execution of a death sentence because it was not a criminal appellate court, and that advising His Majesty on the exercise of the prerogative of pardon was a matter exclusively for the executive and lay outside the Board’s jurisdiction. He further noted that it was permissible for the petitioners’ advisers to inform the Government of India that an appeal to the Board was pending, and that the Government would undoubtedly consider that fact and the surrounding circumstances, but the Board should not express an opinion on whether the sentence ought to be suspended.

These remarks were made on the basis that the Judicial Committee of the Privy Council, unlike the Supreme Court, did not function as a court of criminal appeal, and therefore the question of staying a death sentence lay beyond its judicial competence. The granting of special leave by the Privy Council represented an exercise of the sovereign’s residual power to act judicially through the royal prerogative; consequently, the petitioner in that case remained free to approach the Government of India, as the sovereign’s delegate, to request the exercise of the prerogative of pardon in view of the pending appeal to the Privy Council. A footnote to the Report recorded that the petitioners were reprieved by the Government of India pending the hearing of the petition for leave to appeal (see page 134). It is significant that the reprieve in that case was limited only to the period until the special leave petition was either granted or refused and did not extend to cover the entire pendency of the appeal before the Privy Council, a limitation that distinguishes it from the order now challenged in the present proceedings.

The authority that had previously rested with the Crown to grant special leave to appeal for convicted persons from India has been transferred to this Court by Article 136 of the Constitution. Under Article 136, the Court may exercise its power with respect to any judgment, decree, determination, sentence or order in any cause or matter issued by any court or tribunal within the territory of India. This extensive and all‑encompassing power, as articulated in Article 136,

In this matter, the Court observed that the authority to make any determination by a court or tribunal inherently includes the power to issue orders that are incidental or auxiliary to the exercise of that authority. Consequently, the Constitution confers upon the Supreme Court very broad powers under Article 142, which allows it “to make such order as is necessary for doing complete justice in any cause or matter pending before it.” The Court noted that it has never been contested that it may issue an order suspending a sentence or may grant bail while an application for special leave to appeal is being considered, and such a position could not be contested given the expansive language of Article 142. The Court further explained that whenever an application for special leave to appeal is filed against a judgment and sentence handed down by a High Court, the Supreme Court routinely orders interim bail both during the hearing of the special‑leave application and, if special leave is granted, during the pendency of the appeal before it.

The Court then turned to the argument presented by counsel for the petitioner, who contended that the existence of a pending special‑leave application before the Supreme Court should not affect the executive’s power under Article 161, implying that the judiciary and the executive would have to operate in the same field simultaneously. Counsel for the petitioner also maintained that there could never be a conflict between the Governor’s power under Article 161 and the Court’s power under Article 142 because the former is an executive power and the latter a judicial power, and therefore they do not operate in the same sphere. The Court regarded this reasoning as an oversimplification. While it accepted that Article 161 is exercised by the executive and Article 142 by the judiciary, the Court emphasized that the classification of a power as executive or judicial does not automatically prevent both powers from being exercised over the same subject‑matter. The Court explained that the determining factor is the subject‑matter itself, not the identity of the authority exercising the power.

Identifying the specific power at issue, the Court stated that the executive power in question is the power to suspend a sentence, a power that the Supreme Court may also exercise under Article 142. The subject‑matter of both powers is therefore identical: the suspension of a sentence imposed on a convicted individual. The Court observed that, in the present case, the Governor’s exercise of the power under Article 161 was linked to the appeal that the petitioner intended to file before the Supreme Court. Accordingly, the Court concluded that there is no absolute barrier preventing the judicial power under Article 142 and the executive power under Article 161 from being exercised, within limited bounds, over the same field. The immediate issue, the Court noted, is to interpret the two constitutional provisions harmoniously so that they do not conflict with each other.

It was observed that the Constitution does not contain any express wording that makes the power granted under Article 161 subordinate to the power granted under Article 142, nor does it contain language that makes the power under Article 142 subordinate to that under Article 161. As already noted, Article 161 is written without any limiting words, and similarly Article 142 is also drafted without any limiting terms, meaning that in the areas covered by each provision the respective power is not restrained by the text. However, if there exists any field that is common to both provisions, the Court must apply the principle of harmonious construction so that the two powers do not clash. The Court pointed out that the scope of Article 161 is considerably broader, and that only in a very narrow field does the power conferred by Article 161 overlap with the power conferred by Article 142; that narrow field is the power to suspend a sentence while the matter is sub‑judice before this Court. Consequently, on the basis of the harmonious‑construction principle and in order to avoid a conflict between the two authorities, it must be held that Article 161 does not extend to the suspension of a sentence during the period when Article 142 is operating and the case is sub‑judice before the Court. In making this point the Court contrasted the wording of section 209(3) and section 295(2) of the Government of India Act, 1935. Section 209(3) gave the Federal Court the power to order a stay of execution in any case that was under appeal, pending the hearing of that appeal. Section 295(2) provided that nothing in that Act would prejudice the right of His Majesty, or of the Governor General, if the latter was delegated such right, to grant pardons, reprieves, respites or remissions of punishment. It might have been possible to argue, on the basis of section 295(2), that the prerogative exercised by His Majesty superseded the Federal Court’s power under section 209(3). However, when the language of Articles 72 and 161 is compared with the language of section 295(2), the Court notes that neither Article 72 nor Article 161 contains phrases such as “Nothing in this Constitution” or “Notwithstanding anything contained in this Constitution.” Such qualifying expressions do appear in several constitutional articles, for example Article 262(2), which specifically takes away from the Court the power to decide water‑dispute matters and begins with the words “Notwithstanding anything in this Constitution.” Because Article 161 lacks any such qualifying words, the power of this Court under Article 142 enjoys the same breadth within its domain as the power given to the Governor under Article 161. Therefore, wherever a field allows the simultaneous exercise of both powers, the Court must resort to the principle of harmonious construction to prevent any conflict. Applying that principle, the Court held that the limited power under Article 142, which operates only in the very small portion of the field where Article 161 operates—namely, the suspension and execution of a sentence while the matter is sub‑judice before this Court—must be viewed as separate from the wider power conferred under Article 161.

In this case the Court observed that a sentence imposed while a matter is sub‑judice before the Court must not be treated as falling within the broader authority granted by Article 161 of the Constitution. Counsel for the petitioner, Mr Seervai, referred to the power of nolle prosequi. The Court noted that this power is not comparable to the power of pardon, even though exercising it can bring a criminal proceeding to an end. Similar powers exist under sections 333 and 494 of the Code of Criminal Procedure. The Court stated that the fact that an Advocate General in one circumstance or a Public Prosecutor in another may terminate a prosecution does not affect the issue before it. Under section 333 a case may be discharged, but such a discharge does not necessarily preclude a private individual from filing a complaint in the appropriate court unless the judge orders that the discharge shall amount to an acquittal. Section 494 allows a case to be withdrawn only with the Court’s consent. Because these proceedings are not of the nature of a pardon, remission, suspension or commutation of a sentence, they are irrelevant to the question before the Court. The matter before the Court was limited to whether the Governor could, under Article 161, suspend a sentence while a special leave petition and a subsequent appeal were pending before this Court. The Court recognised that the Governor may at any time, even during the pendency of a case before this Court, grant a full pardon, which is commonly described as exercising “mercy jurisdiction.” Such a full pardon, once the accused has been convicted, completely releases the person from all punishment and any disqualification arising from the conviction. This power resides with the head of the Executive because the judiciary does not possess a mercy jurisdiction. However, the suspension of a sentence for the period during which this Court has seized the case could also be ordered by the Court itself. If, for the same period, the Governor also possessed the power to suspend the sentence, both the judiciary and the executive would be operating in the same field simultaneously, creating a potential conflict of jurisdiction. The Court held that the framers of the Constitution could not have intended such a conflict. Nevertheless, counsel for the petitioner argued that the language of Article 161 does not support the conclusion that the Governor’s power is limited or conditioned in any way.

The Court observed that the contention that the Governor’s power is wholly unrestricted is mistaken, because the argument incorrectly assumes that the Governor’s authority is absolute and without any limitation. The Court explained that, as long as the judiciary retains the power to issue a specific order in a case that is still pending, the Executive’s authority must be read as limited by the language of sections 401 and 426 of the Code of Criminal Procedure together with Articles 142 and 161 of the Constitution. If this interpretation is applied to harmonise the relevant provisions, it follows that matters falling within the ambit of Article 142 are not covered by Article 161, and similarly that matters dealt with under section 426 are not governed by section 401. Under this construction, the submission made by counsel that there is no conflict between the sovereign’s prerogative to grant a pardon and the courts’ power to adjudicate a pending case would be correct. The Court then turned to another point raised by the same counsel concerning the rule framed under Order 21, Rule 5. The counsel argued that Article 145, which empowers the Court to make rules, operates only subject to any law made by Parliament, and further stressed that such rules require the President’s approval before they can take effect. In effect, the argument was that the Court’s rule‑making power amounts to subordinate legislation, and that any inconsistency between Order 21, Rule 5 and Article 161 must be resolved in favour of the Governor’s authority under Article 161. The Court noted that this line of reasoning missed the essential reality that the real conflict is not between the specific rule and Article 161, but between the broad powers granted to the Court by Article 142 and the equally broad powers granted to the Governor by Article 161. Consequently, it would be erroneous to claim that compliance with the rule becomes unnecessary merely because the Governor has exercised a higher authority under Article 161, thereby eliminating the need to obey the rule. The Court further reminded that, although the rule was framed under Article 145, the source of the Court’s power to grant bail or suspend a sentence pending a criminal hearing is not that rule nor Article 145, but Article 142. Accordingly, the matter for determination in the present case is whether, considering the extensive scope of the powers conferred on both the Court and the Governor by Articles 142 and 161, a conflict exists and how it should be resolved.

In this matter the Court observed that it would not be reasonable or proper to attempt to harmonise the two constitutional provisions in a manner that would eliminate any conflict between the powers they confer. The Court further stated that, for the purpose of deciding the question, the legal nature of any rules that might be made under Article 145 was irrelevant. The Court then considered what the logical consequences would be if the argument advanced by counsel Mr Seervai were to be accepted. In the facts before the Court, the order of the Governor had been issued even before the petitioner’s application for special leave was heard by the Court; in fact the gubernatorial order had been made prior to the filing of that application, the Governor having explained that the order was issued because the petitioner intended to file an appeal before the Court. To illustrate the point, the Court imagined a situation in which an application for special leave had already been filed in this Court and, on a motion made by the petitioner, the Court had directed that the petitioner be released on bail upon execution of a personal bond of ten thousand rupees together with two sureties of the same amount. According to Mr Seervai, even after such an order was passed by the Court in a pending criminal matter, the petitioner could still approach the Governor for a suspension of his sentence pending the hearing of his application and appeal, and the Governor, in a proper case, could unconditionally suspend the sentence. In other words, Mr Seervai frankly conceded that, even while a criminal matter was pending before the Court, an order issued by the Court could effectively be set aside by the Governor by way of an unconditional suspension of the sentence imposed on the petitioner. This illustration, the Court noted, made clear the nature of the controversy that required resolution. If the argument of Mr Seervai were to be accepted, it would inevitably mean that, by exercising the power conferred on him by Article 161, the Governor could effectively interfere with an order passed in the same matter by the Court under its power under Article 142. The Court emphasized that the field in which both powers operated was exactly the same. The question, therefore, was whether a sentence passed against an accused could be suspended during the hearing of an appeal on the ground that an appeal was pending, a question that was being raised both before the Court and before the Governor. In such a circumstance it would be idle to suggest that the field within which the Governor’s power under Article 161 could be exercised was different from the field within which the Court’s power under Article 142 could be exercised. The Court observed that although the powers were different in character—one judicial and the other executive—this distinction did not alter the nature of the field or affect its identity. After giving anxious consideration to the problem presented for decision, the Court expressed that it felt no hesitation in taking the

In the opinion of the Court, any potential clash between the two powers under consideration can be reasonably and properly averted by applying a harmonious rule of construction. Such avoidance would also prevent an encroachment on the rule of law, which constitutes the very foundation of the Constitution. It was vigorously submitted before the Court that the power to grant pardon is extensive and absolute, capable of being exercised at any time, even in criminal matters that are sub judice, and that the power to suspend a sentence forms part of this broader pardon power and may therefore be exercised in a similar manner. The Court found this argument to be erroneous because it disregarded the essential distinction between the general executive power to grant pardon and the specific power to suspend a sentence in criminal matters that are pending before this Court. The former power is an exclusively executive authority vested solely in the Governor under Article 161 and does not reside in the Court; consequently, the field covered by that power is confined to the exercise of that executive authority, and no conflict of powers can arise in that context. A conflict of powers presupposes that the same or a similar power exists in two separate authorities. In contrast, the power to suspend a sentence is vested both in this Court, pursuant to Article 142, and in the Governor, under Article 161. This overlap creates the possibility of a conflict between the two powers. The Court therefore observed earlier that an excessive focus on the scope of the broader pardon power tends to distract from the essential characteristics of the specific power to suspend a sentence, which is the sole subject of the present proceedings. After careful consideration of these points, the Court concluded that the Governor’s order granting suspension of the sentence could operate only up to the moment when the matter became sub judice in this Court upon the filing of a petition for special leave to appeal. Once such a petition was filed, the Court seized the case and would deal with it in accordance with the law. At that stage, it would be for this Court, when urged, either to apply Rule 5 of Order XXI or to exempt the petitioner from that rule. The Court would also have the authority to pass such orders as it deemed appropriate, including granting bail, directing surrender of the sentence, or issuing any other orders it considered fit in the circumstances of the case. Consequently, the Court held that the Governor possessed no power to grant suspension of the sentence for the period during which the matter was sub judice before this Court.

For the period during which the matter remained sub judice before this Court, a substantial amount of argument was presented concerning the legality of the condition imposed by the Governor in the order that is now being challenged. The Court examined the extent of the Governor’s authority, particularly with respect to the interval after the case had become sub judice, and concluded that it was unnecessary to decide that specific point of controversy. Consequently, the application dated 21 April 1960, as amended by the affidavit filed on 6 July 1960 and seeking to have the special leave petition listed for hearing without requiring the petitioner to surrender because of the Governor’s order, was found to be untenable and was therefore dismissed. Justice Kapur then stated that, although he had reviewed the order proposed by the Chief Justice, he could not concur with it and therefore set out his reasons. He observed that the petition, which sought exemption from the requirement to surrender after the sentence had been imposed, raised a question of considerable constitutional significance. The petitioner argued that, since his sentence had been suspended by an order of the Governor of the former State of Bombay, the rule of this Court requiring surrender as a condition precedent to the hearing of a petition for leave to appeal against the High Court judgment should not apply to him, and that he should be exempted from that rule. The factual background that gave rise to the petition had already been detailed in the order of the Chief Justice and therefore need not be repeated. Justice Kapur explained that the resolution of the petition depended upon an examination of the nature, effect, scope and operation of the powers conferred by Articles 142(1), 145 and 161 of the Constitution, including how those provisions should be interpreted and whether they conflict with or complement each other. He indicated that it would be necessary to explore the historical development of the prerogative of pardon in England and the United States, and to consider how the jurisprudence and practice in those jurisdictions might illuminate the true intent and purpose of the constitutional articles concerned. Under the Indian Constitution, the power to grant pardons is vested in the President and in the Governors of the States. Article 72, which forms part of Part V, Chapter 1 dealing with the Union Executive, concerns the President’s authority and provides that the President shall have the power to grant pardons, reprieves, respites or remission of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence. Sub‑clauses (a), (b) and (c) of Article 72(1) further specify the circumstances in which this power may be exercised, including cases where the offence relates to a matter within the executive power of the Union and other specified situations.

In the judgment, it was noted that Article 72, clause (1) sub‑clause (c) expressly provided that the President’s power extended to all cases where the sentence was a death sentence. Sub‑clause (c) of clause (1) was further clarified by stating that nothing in that sub‑clause would affect the power of a State Governor to suspend, remit or commute a death sentence under any law then in force. The text of Article 161, which lies in Part VI, was quoted in full: “The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.” Article 142(1) was also reproduced, declaring that the Supreme Court, in the exercise of its jurisdiction, could pass any decree or make any order necessary to achieve complete justice in a cause before it. The Court observed that both Articles 72 and 161 conferred the widest possible authority on the President or the Governor, respectively, and that neither article contained any limiting language. It was argued that, when Articles 142 and 145(1) – which grant certain powers to the Supreme Court – were read together with the provisions granting powers to the President and to the Governors, a potential conflict arose, and that a harmonious construction of all four articles would require a narrowing of the breadth of the powers under Articles 72 and 161. To understand the law on suspension of sentences, the Court turned to the legislative history of the executive and judicial powers involved. In the Criminal Procedure Code of 1861 (Act XXV of 1861), the executive’s power was confined to remission of punishments and was set out in Section 54, which read: “When any person has been sentenced to punishment for an offence, the Governor‑General of India in Council, or the local Government, may, at any time, without conditions, or upon any condition which such person shall accept, remit the whole or any part of the punishment to which he shall have been sentenced.” This provision appeared in Chapter III, titled “Preliminary Rules”, which also dealt with passing sentences, places of confinement, and the Governor‑General’s remission power. In Chapter XXX, dealing with appeals, Section 421 gave the appellate court authority to suspend sentences pending appeal and to release a bailable appellant on bail, stating: “In any case in which an appeal is allowed, the Appellate Court may, pending the appeal, order that the sentence be suspended, and if the appellant be in confinement for an offence which is bailable, may order that he be released on bail.” The discussion then continued with the reference that subsequently the Criminal Procedure Code of 1872 was enacted, leading to further provisions on remission and suspension, before the analysis proceeded to the next portion of the judgment.

The Criminal Procedure Code of 1872, known as Act X of 1872, contained the authority of the executive to remit punishments in Chapter XXIII. Section 322 provided that when any person had been sentenced to punishment for an offence, the Governor General of India in Council or the Local Government could at any time, without conditions, or upon any conditions that the sentenced person accepted, remit the whole or any part of the punishment to which he had been sentenced. The power to suspend a sentence pending an appeal and to release the appellant on bail was set out in Section 281 of Chapter XX, which dealt with appeals. Section 281 stated that in any case where an appeal was allowed, the Appellate Court could, pending the appeal, order that the sentence be suspended and, if the appellant were in confinement for a bailable offence, could order his release on bail. Moreover, the period during which the sentence was suspended would be omitted when reckoning the completion of the punishment.

The Criminal Procedure Code was reenacted in 1882 as Act X of 1882, and the powers of suspension or remission were placed in a separate Chapter XXIX titled “Suspensions, Remissions and Commutations of Sentences.” The relevant provision, Section 401, declared that when any person had been sentenced to punishment for an offence, the Governor General in Council or the Local Government could at any time, without conditions, or upon any conditions that the sentenced person accepted, suspend the execution of the sentence or remit the whole or any part of the punishment to which he had been sentenced. The section further affirmed that nothing contained therein should be deemed to interfere with the right of Her Majesty to grant pardons, reprieves, respites, or remissions of punishment. The authority of appellate courts to suspend sentences pending appeals was set out in Section 426 of Chapter XXI, which provided that, pending any appeal by a convicted person, the Appellate Court could, for reasons recorded in writing, order the execution of the sentence or the order appealed against to be suspended, and if the appellant were in confinement, could release him on bail or on his own bond. The same power could be exercised by the High Court in appeals from subordinate courts. When the appellant was ultimately sentenced to imprisonment, penal servitude, or transportation, the time of release would be excluded from the computation of the term of the sentence.

A new Criminal Procedure Code was enacted in 1898, and a portion of it was later amended. The section dealing with the powers of suspension or remission of a sentence remained Section 401, and it was quoted as follows: “401. (1) When any”.

When a person had been sentenced for an offence, the Governor‑General‑in‑Council or the local Government could at any time, either without imposing any condition or subject to conditions that the sentenced person accepted, either suspend the execution of the sentence or remit all or part of the punishment imposed. The original subsection (5) of that provision read: “Nothing herein contained shall be deemed to interfere with the right of His Majesty or of the Central Government when such right is delegated to it to grant pardons, reprieves, respites or remissions of punishment.” That subsection was later repealed by the Adaptation of Laws Order, 1950, and the expressions “Governor‑General‑in‑Council” and “local Government” were accordingly altered to reflect subsequent constitutional changes.

The corresponding provision governing appellate courts is found in section 426 of Chapter XXXI, which deals with appeals. The relevant excerpts of that section state: “(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, if the person is in confinement, that he be released on bail or on his own bond. (2) (B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained, the High Court may, if it so thinks fit, order that pending the appeal the sentence or order appealed against be suspended, and also, if such person is in confinement, that he be released on bail.” This latter subsection was added at a later date.

The historical background shows that under the Code of 1861 the executive power of the Governor‑General was limited to remission of punishment, while the appellate courts could only suspend the sentence pending appeal in non‑bailable offences and could release the accused on bail in bailable cases. The Code of 1872 retained the same distinction: the Governor‑General and the local Government possessed the power of remission, and the appellate courts possessed the power of suspension pending appeal. In the 1882 Act, section 401 employed the language “suspension of the execution of a sentence or remit the whole or any part of punishment.” That power was discretionary and the statute did not impose any limitation on its exercise. However, the wording for the appellate courts differed from earlier codes by requiring the courts to record their reasons in writing, thereby underscoring that the executive power and the judicial power, though aimed at the same overall purpose, were distinct and exercised on different considerations and in different circumstances.

The Court observed that the statement of circumstances did not imply that the courts had never exercised their own power before the enactment of the Act of 1882. It noted that the later Act of 1898, which remained in force, again referred to the same authority to suspend the execution of sentences or to remit punishments in section 401 and in clause 426, and it reiterated the requirement that “for reasons to be recorded in writing.” This repetition, the Court explained, signified the legislature’s intention to emphasize the essential distinction between the way the executive and the judiciary exercised comparable powers. The expression “at any time” appearing in section 401 was described as very broad, indicating a plenary character of the power. The Court then turned to the Government of India Acts that preceded the 1935 Act and observed that those statutes contained no reference to the Crown’s power or to the power of the Governor‑General as the Crown’s delegate. Consequently, the Court could not conclude that the Indian legislature, irrespective of its authority, could affect the King’s prerogative; any provision in the Criminal Procedure Code would therefore be wholly ineffective with respect to the King’s prerogative of granting pardons. The Court cited Henrietta Muir Edwards v. Attorney General of Canada (1) in support of this view. It further noted that provisions such as section 401(5) were included as an abundance of caution. Section 295 of the Constitution Act of 1935 was identified as a special provision dealing with the executive’s power to suspend, remit or commute a death sentence. Sub‑section (1) of that section provided that the discretionary power of the Governor‑General was the same as that vested in the Governor‑General in Council immediately before Part III of that Act commenced, except that no authority outside a province could suspend, remit or commute the sentence of any person convicted within a province. Sub‑section (2) was described as a saving clause, stating: “Nothing in this Act shall derogate from the right of His Majesty, or of the Governor‑General, if any such right is delegated to him by His Majesty, to grant pardons, reprieves, respites or remissions of punishment.” The Court concluded that the power of the King, or of the Governor‑General acting as the King’s delegate, to grant suspension, remission or commutation remained untouched by the introduction of a federal system dividing powers between Centre and Provinces. This provision was situated in the part of the Act concerning certain legal matters. Accordingly, under the Government of India Act, the Governor‑General in his discretion possessed the power (1)[1930] A.C. 124, 136 to remit sentences of death, while provincial Governors held authority over all sentences passed within their provinces; nevertheless, the King’s prerogative and that of the Governor‑General as his delegate were not altered by the first sub‑section. Thus, up to the commencement of the Constitution, the exercise of the King’s prerogative remained unaltered and continued to be plenary and unfettered.

In this discussion, the Court described the historical nature of the power of pardon in England. It noted that the power was plenary, unfettered and exercisable as before. Historically, in England the King, as the autocratic head of Government, always possessed the power to grant pardons. This power formed part of the special pre‑eminence that the King held over all other persons and that existed outside the ordinary course of the common law, derived from his royal dignity, as quoted in Blackstone’s Commentaries (i) page 239. Lord Coke described a pardon as a “work of mercy whereby the King, either before attainder, sentence or conviction, or after, forgiveth any crime, offence, punishment, execution, right, title, debt or duty, temporal or ecclesiastical” (Institutes, page 233). The Court then referred to the common‑law statement found in Hale’s Pleas of the Crown, volume 2, chapter 58, page 412, which classifies reprieves or stays of judgment or execution into three categories: ex mandate regis, ex arbitrio judicis, and ex necessitate legis. Under ex arbitrio judicis a judge may grant a reprieve before judgment when he is not satisfied with the verdict, when the evidence is uncertain, when the indictment is insufficient or doubtful as to whether it falls within clergy jurisdiction. A judge may also grant a reprieve after judgment in cases of a small felony, an offence outside clergy jurisdiction, or to facilitate a pardon or transportation. Such arbitrary reprieves may be granted or removed by justices of gaol delivery, and their sessions may be adjourned or concluded, a practice justified by common usage as noted in Dyer (205a, 73 Eng. Reprint, page 452). The third category, ex necessitate legis, applies, for example, when a woman convicted of a felony or treason pleads pregnancy; although this does not constitute a reason to set aside the judgment, it provides a temporary respite of execution until she delivers, a mercy described by Blackstone as dictated by the law of nature in favor of the unborn. Blackstone further explained that the only remaining means of avoiding execution of a judgment are a reprieve, which is temporary, or a pardon, which is permanent. The Court defined a reprieve as the withdrawal of a sentence for a limited period, thereby suspending execution. A reprieve may arise ex arbitrio judicis either before or after judgment when the judge doubts the verdict, finds the evidence suspicious, considers the indictment insufficient, is uncertain whether the offence is clerical, or sees favorable circumstances in the offender’s character that might allow an application to the Crown for an absolute or conditional pardon. These arbitrary reprieves may be granted or withdrawn by justices of gaol delivery even after their session has ended or their commission has expired, a practice based more on custom than on a strict legal right. Additionally, a reprieve may arise ex necessitate legis, such as when a condemned woman pleads pregnancy, providing a temporary respite of execution until delivery, an act of mercy guided by natural law. After a sentence has been imposed, the execution of that sentence may be suspended for a known period.

The Court observed that a reprieve may be granted by the king or by the Court, as noted in Orfield’s Criminal Procedure from Arrest to Appeal, p. 529. It explained that as the possessions of the kings of England expanded and several colonies came under their authority, the power of pardon exercised by the kings was transferred to their representatives in the colonies and, in America, subsequently to the State Governors and to the President for federal offences. The same historical process, the Court said, was reflected in this country by the various enactments and provisions previously set out.

The Court stressed, despite the repetition, that both the power of pardon and the power of reprieve—being a part of the all‑comprehensive power of pardon—are executive acts that may be exercised at any time, in any circumstance, and without limitation except as prescribed by the Constitution; see Craies on Statute Law, page 483. Regarding the Constitution, the Court noted that the President’s power remains exactly as it was in section 295 of the Constitution Act of 1935 and is unaffected with respect to a death sentence by the authority conferred under article 161. Likewise, the Governor’s power contained in article 161 is of the widest amplitude, as the quoted words of that article demonstrate.

The Court explained that when construing a constituent or organic statute such as the Constitution, interpretation must be attached that is most beneficial to the widest amplitude of its powers, citing British Coal Corporation v. King (1). It also quoted the Judicial Committee in Henrietta Muir Edwards v. Attorney General of Canada (2), stating that the Board does not consider it its duty to interpret the Act narrowly or technically. Turning to American practice, the Court observed that the exercise of the power of pardon is governed by the same principles that applied to the King’s power of mercy under the English Constitution. In United States v. Wilson (3), Chief Justice Marshall said that the power “had been exercised from time immemorial by the executive of that nation… and we adopt their principles respecting the operation and effect of a pardon.” Similarly, Justice Wayne, in Ex parte Wells (4), affirmed that the constitutional language granting reprieves and pardons must be construed according to its meaning at the time of adoption, when the power was exercised by the King as the Chief Executive. (1) [1935] A.C. 500. (2) [1930] A.C. (3) 8 L. Ed. 640, 643, 644.

In the earlier authorities cited at pages 124 and 136 of the report, and in the case reported at 15 L. Ed. 421, 424, it was observed that the power of pardon had historically been exercised by the King as the chief executive. Before the American Revolution, the colonies, which were then subject to English law, were familiar with the various forms of pardon described in English legal texts. Those forms were applied whenever appropriate and formed part of the Anglo‑American jurisprudence. When the United States Constitution was adopted, American political leaders were well aware of the prerogatives that the English Crown exercised. Consequently, the phrase in the Constitution that speaks of “granting pardons” was intended to convey the same authority that the Crown, or its colonial representatives, possessed. At that period both Englishmen and Americans understood the word “pardon” in the same sense. The constitutional convention that drafted the Constitution did not attempt to alter or redefine that meaning, although it limited the power in cases of impeachment. Accordingly, the word must be given the meaning it had in England at the time the Constitution was framed. This approach accords with the principles set out by this Court in Cathcart v. Robinson, 5 Pet. 264, 280, and in Flavell’s case, 8 Watts & Serg. 197, as well as with the Attorney General’s brief. In Ex parte Grossman, Chief Justice Taft remarked that the language of the Constitution cannot be safely interpreted except by reference to the common law and to British institutions as they existed when the instrument was drafted and adopted. The statesmen and lawyers of the Convention, who presented the Constitution to the thirteen states for ratification, were raised in the common‑law tradition and thought in its terminology. Though they examined many forms of government, both ancient and modern, they expressed their conclusions in the compact draft in common‑law terms, confident that the meaning would be readily understood (see 69 L. Ed. 527, 530, 532, 535). According to both the American and the Indian Constitutions, the power vested in the President is not merely the power to reprieve and pardon but the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Justice Wayne, in Ex parte Well, page 425, explained the distinction between the two expressions. He observed that the first expression conveys the idea of an absolute power regarding its purpose or object, whereas the constitutional language is general, covering the whole class of pardons recognized in law, including conditional pardons, which he noted as one example. A single remark from the

The discussion began by noting that the authority to grant reprieves illustrates an important principle. The power to grant reprieves is not limited merely to postponing a judicial sentence when the President believes that the merits of the case or some circumstance relating to the offender warrant such a delay. It also extends to situations that are required by the law, even though the excerpt contains an incomplete phrase “ex necessitate legis …”. Although a reprieve in either situation merely delays the execution of a sentence, the Court observed that the two kinds of reprieves differ in their legal character and differ as to the reasons that may justify the exercise of the power to reprieve. The Court then turned to the Indian context, stating that the framers of the Constitution of India were well‑acquainted with English institutions and with the powers exercised by English monarchs, as well as by the Governor‑General and the provincial Governors of British India. Consequently, it is legitimate to look to English law for guidance when construing the constitutional provisions that deal with the powers of the President and the Governor concerning pardons and the other forms of clemency mentioned in those two articles. Moreover, the Court said it would not be improper to acknowledge that the Indian Constitution’s drafters were also familiar with American constitutional law, that they were trained in British jurisprudence, and that they drafted the Constitution in English; therefore, referring to the American experience is wholly appropriate. (1) 15 L. Ed. 421, 425. The Court further explained that the historical development of the prerogative of pardons and reprieves shows that the executive’s power in matters of pardon, reprieve, and related forms of clemency is of the widest possible scope, is plenary, and may be exercised at any time after the offence has been committed. This executive power is described as an act of grace and clemency. It is a sovereign or governmental power that, in a monarchy, resides in the King, and in a republic, resides in the State or the people, and which may, by constitutional grant, be conferred on an officer or a department. The Court noted that this is an executive power of the Governor, comparable to the power exercised by colonial governors in America (67 C. J. S. 565). Referring to case law, the Court cited Wayne, J., in Ex parte Wells, who described the power as an act of mercy and clemency applicable to all kinds of pardons, and cited Field, J., in Ex parte Garland, who called it the benign prerogative of mercy. The power, the Court explained, exists to avoid the execution of a judgment either by a temporary reprieve or by a permanent pardon. Relying on Willoughby’s Constitution of America, Vol. III, p. 1492, the Court quoted that the power to pardon includes the right to remit either part of the penalty or the whole penalty, and that such pardon may be conditional. The power may be exercised at any time after the offence is committed—whether before, during, or after legal proceedings for punishment. Ex

In the judgment, the Court explained that a reprieve merely postponed the execution of a sentence for a specific period and did not prevent the ultimate enforcement of the judgment; it simply delayed it. The purpose of granting a reprieve was to give the prisoner a chance to obtain some improvement in the punishment that had been imposed. The power to grant a reprieve was described as an executive act, and the sole authority to determine whether the facts were sufficient and whether the action was proper rested with the Governor. No other department in the United States possessed control over the Governor’s exercise of this power. The Court noted that when the pardoning power was conferred on the head of the executive, it functioned as an executive power and function, even though it operated in derogation of the ordinary law. A pardon could be made conditional, and the issuance of a conditional pardon was not illegal. The Court cited authority indicating that the power of pardon was not subject to legislative control, referencing Ex parte Garland, and that the legislature could not alter the effect of a pardon, as established in United States v. Klein. The executive could grant a pardon for any reason, whether good or bad, and the act of pardon was final and irrevocable. The Courts were said to have no concern with the motives that prompted the executive to grant the pardon, and the power lay beyond judicial control, as supported by citations to American Jurisprudence and Horwitz v. Connor. The Court further compared the English practice, where the King’s exercise of clemency represented the power of mercy, describing the power as plenary, unfettered, and exercisable at any time after the commission of the offence. It was observed that the American executive, whether under the Federal or State Constitution, exercised a power of the same nature as that of the English Crown’s representative in colonial America. The Court stated that executive clemency existed to provide relief from undue harshness or individual error in the operation or enforcement of criminal law, and that such a power was essential in both popular governments and monarchies to allow an authority other than the courts to ameliorate or avoid particular criminal judgments. The power was characterised as the highest executive’s full discretion, exercised with confidence that it would not be abused. In Ex parte Garland, the Court reiterated that the President’s pardon was not subject to legislative control, quoting Field, J., who described the law as unlimited, extending to every offence known to law and exercisable at any time after its commission. The Court affirmed that the President’s power was not subject to legislative limitation; Congress could neither limit its effect nor exclude any class of offenders, and the “benign prerogative” could not be fettered by any legislative restriction.

The Court noted that the authority to grant mercy cannot be limited by any legislative restriction, as reflected in the authorities cited at pages 366, 370 and 371, and in the reports 20 L. Ed. 519 and 6 C. L. R. 1497. It observed that, in Ex parte Grossman, the court held that there was no distinction between the power of the President of the United States and the power of the king with respect to the grant of a pardon. The opinion of Chief Justice Taft, recorded at page 535, was quoted in full: “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the court the power to ameliorate or avoid particular criminal judgments. It is a check intrusted to the Executive for special cases.” The Court further explained that the same decision warned that an executive use of the power that destroys the deterrent effect of judicial punishment would pervert the purpose of punishment, and that the person who may make the power useful must possess full discretion, a discretion that is vested in the highest officer of the nation.

The Court then turned to the American case Biddle v. Vuco Perovich, where Justice Holmes remarked that a pardon is not a private act of grace bestowed by an individual who happens to possess power; rather, it forms part of the constitutional scheme, and its grant represents the ultimate authority’s determination that the public welfare will be better served by imposing less than the judgment originally fixed. The Court observed that the same principle was applied in Sorrell v. United States, where Justice Holmes’s view was followed and it was held that clemency is the function of the executive, while the function of the courts is to interpret statutes and not to defeat them as construed. A review of these American decisions showed that the courts there have accepted that the English principles governing the extent, operation and effect of pardons and reprieves apply in America. The power previously exercised by the king and, by delegation, by colonial governors is now exercised by the highest executive of the land, and a pardon that includes reprieve or respite may be described variously as an act of clemency, an act of mercy, an act of grace, an exercise of sovereign or governmental power, or the determination of the ultimate authority. Consequently, the principles that govern the exercise of this executive power differ fundamentally from those that govern the exercise of judicial power. The Court also pointed out that American courts have disapproved of any interference by the courts or the legislature with the extent and effect of the prerogative vested in the people through the executive.

In this case the Court examined the President’s power of benign mercy and noted that the United States Supreme Court had affirmed the independence of that power in the decisions Ex parte Garland¹ and United States v. Klein². In Ex parte Garland the President had issued a pardon to rebels who had participated in the civil war against the federal forces; when the legislature attempted to overturn the pardon the Court held that a presidential pardon could not be subject to legislative control. In United States v. Klein, which involved a conditional pardon, the Court similarly held that the legislature possessed no authority to interfere with the executive’s clemency power. The Court then observed that the executive power to grant pardons may be exercised at any time, a principle that applies in England, the United States and India. Lord Coke was quoted as saying that the King “can forgive any crime, offence, punishment or execution either before attainder, sentence or conviction or after”³ Insti. 233; Hawkins’ Pleas of the Crown bk. 2, Chapt. 37. Indian law expressly uses the term “any time” in section 401 of the Criminal Procedure Code, and English practice also permits the Crown to pardon before or after conviction, or even before trial. Regarding pre‑trial pardons, the same effect can be achieved by entering a nolle prosequi, a procedure also recognised in India. Under section 333 of the Code of Criminal Procedure the Advocate‑General may, in matters before a High Court, enter a nolle prosequi; this authority is absolute and not subject to judicial control. The provision clarifies that before a verdict is rendered the Advocate‑General may, on behalf of the Government, inform the court that the prosecution will not proceed against the accused and that the accused shall be discharged, although such discharge does not constitute an acquittal unless the judge directs otherwise (see 18 L. Ed. 366, 370 & 371). It was further explained that in Bombay the Advocate‑General’s power extends to cases tried by the Court of Session, preventing a private complainant from reinstating the proceedings because the Crown may always assume control of a criminal case and enter a nolle prosequi. The Public Prosecutor holds a similar power in courts of original jurisdiction under section 494 of the Criminal Procedure Code, but this power is not as absolute as that under section 333 because it requires the consent of the court. The Court concluded that, absent any constitutional limitation, the power of pardon and reprieve—whether conditional or unconditional—may be exercised at any stage after the offence has been committed: before legal proceedings commence, during their pendency, after an appeal is filed, or while the appeal is pending in an appellate court. This principle was reaffirmed in Ex parte Grossman¹, Ex parte Garland² and is recorded in 67 C. J. S. 572.

The Court observed that, in the absence of any statutory limitation, there is no upper bound on the duration of a reprieve and that successive reprieves are not unlawful, as noted in 67 C.J.S. p. 582. To illustrate this principle, the Court referred to the decision in Rogers v. Peck. In that case, Mary Mabel Rogers received a reprieve so that she could appeal to the United States Supreme Court from a district‑court order denying her habeas‑corpus petition. Rogers had been convicted of murder during the December term of 1903 and was held in solitary confinement until 3 February 1905, the date on which she was scheduled to be executed. On 1 February 1905 the Governor issued a reprieve postponing the execution until 2 June 1905. Subsequently, on 29 April 1905 Rogers filed a petition for a new trial in the State Supreme Court; the petition was admitted on 5 May 1905 and a hearing was set for 10 May 1905. The petition was dismissed on 30 May 1905 and the request for a new trial was denied. The Governor then extended the reprieve on 1 June 1905, moving the execution date to 23 June 1905. After that, Rogers sought a writ of habeas corpus in the Federal Court, which was also dismissed. On the same day the Governor further postponed execution until 8 December 1905. The United States Supreme Court admitted her appeal on 22 June 1905, but ultimately dismissed it on 27 November 1905. Among the grounds raised before the Supreme Court were the claim that the Governor’s reprieve ordered execution while the United States court was still considering her habeas‑corpus relief, and the allegation that the State Supreme Court failed to grant a stay and set an execution date. Both grounds were overruled, and the Court held that the reprieve was intended to allow the appeal to be heard and did not violate any due‑process requirement. Moreover, when the Governor granted a further reprieve after the State Supreme Court hearing had concluded, there was no occasion for the court to interfere. This authority demonstrates that the power of reprieve may be exercised even while appellate proceedings are pending.

The opposing argument to the submissions of the learned Advocate‑General contended that, although the executive possesses an absolute power to grant pardon, reprieve, or suspension of sentence at any time, this authority is nonetheless subject to statutory and constitutional restrictions. Specifically, the opposition argued that such limitations exclude the executive from exercising the power of pardon or reprieve during the period when a defendant’s case has been brought before the Supreme Court or any other appellate tribunal. The contention relied on section 426 of the Criminal Procedure Code, which authorises appellate courts to suspend a sentence pending an appeal, provided the reasons are recorded in writing, and on Articles 142 and 145 of the Constitution, which respectively confer on the Supreme Court the power to do complete justice in any pending matter and the authority to make rules, subject to parliamentary legislation. Under Article 145, the Supreme Court has promulgated Order 21, Rule 5 and Order 21, Rule 28, which are relevant to the present appeal. The argument therefore maintained that the executive’s power to reprieve should be curtailed during the pendency of appellate proceedings, as contemplated by the statutory and constitutional framework.

In this matter the Court examined whether an executive reprieve could be granted after a case involving a defendant had been presented before the Supreme Court or any other appellate tribunal. The argument relied upon section 426 of the Criminal Procedure Code, which authorises appellate courts to suspend a sentence while an appeal is pending, provided that the reasons for suspension are recorded in writing. The discussion also turned to Articles 142 and 145 of the Constitution. Article 142 endows the Supreme Court with the authority to achieve complete justice in any cause or matter before it, while Article 145 empowers the Supreme Court to formulate procedural rules, subject to the President’s approval and to any law that Parliament may enact. Exercising the rule‑making power under Article 145, the Court has framed Order 21, Rule 5 and Order 21, Rule 28, which read as follows: “When the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Unless the Court otherwise orders, the petition shall not be posted for hearing until the petitioner has surrendered to his sentence.” and “Pending the disposal of any appeal under these Rules the Court may order that the execution of the sentence or order appealed against be stayed on such terms as the Court may think fit.” Rule 5 is described as a salutary provision because the Court will not entertain a petition where the party remains in contempt of the subordinate court’s order; however, it is expressly subject to the discretion conferred by Article 136, which permits the Supreme Court, notwithstanding any other provision, to grant special leave to appeal. Rules made under Article 145 are classified as subordinate legislation, since they must yield to any statutory law passed by Parliament and may be altered only with the President’s approval. By contrast, a constitutional amendment must follow the Constitution’s procedures and therefore cannot be superseded by such rules. Consequently, even though the Supreme Court may, under its rules, suspend a sentence and condition the filing of an appeal on the petitioner’s surrender, this power cannot override the provisions of Article 161. When a direct conflict arises between a constitutional article and subordinate rules, the latter must yield. The parties contended that the powers vested in the Court by Articles 142 and 145 and the Governor’s power under Article 161 are mutually inconsistent, and therefore the Governor’s authority does not extend to the period while an appeal is pending before the Supreme Court, as the law does not envisage concurrent exercise of executive and judicial powers over the same matter.

In this case the Court observed that the executive and the judiciary must not be imagined to function in the identical arena, and that it is essential for the Court to adopt a harmonious interpretation of the relevant constitutional provisions. Article 142 of the Constitution, the Court noted, is expressed in language of the widest amplitude and embraces powers such as the suspension of sentences. The submission that the executive power to suspend a sentence under article 161 and the judicial power to suspend a sentence under articles 142 and 145 are in conflict was rejected on the ground that it disregarded the nature of the two distinct powers. While the result of both powers may be the same, the Court emphasized that they do not operate in the same field. The two authorities do not rely on the same principles, and in exercising their respective powers they consider different matters. The executive exercises its power in derogation of the judicial power. The power of the executive to pardon, including reprieve, suspension or respite of a sentence, is a sovereign or governmental power inherent in the State. It is a power of clemency, mercy and grace – a benign prerogative of the highest officer of the State – and may be based on policy considerations. The executive power is to be exercised on the ground that the public good will be at least as well, if not better, promoted by suspension as by execution of the sentence, but it is not a judicial process. The exercise of this executive power lies in the absolute and uncontrolled discretion of the authority in whom it is vested.

The Court further explained that the power of the courts to suspend sentences must be exercised on judicial considerations. At common law, courts have been held, as noted in Ex parte U.S., to possess the right to exert judicial discretion in the enforcement of the law so as to temporarily suspend either the imposition of a sentence or its execution when such suspension is necessary to enable a pardon to be procured or to prevent other violations of the law. The same authority also warned that a Federal District Court exceeds its power when it orders that the execution of a sentence imposed after a guilty plea be suspended indefinitely on the basis of good behaviour, where the considerations are wholly extraneous to the legality of the conviction, as reported in the same Ex parte U.S. decision. In U.S. v. George Wilson, Chief Justice Marshall observed that “it is a constituent part of the judicial system that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially.” In Ex parte Grossman, it was observed that the administration of justice by the courts is not necessarily always wise or considerate of circumstances that may mitigate guilt, and that it was therefore deemed necessary to vest a remedial function in an authority other than the court to ameliorate or avoid particular criminal judgments. The Court cautioned that the exercise of the executive power of clemency has the effect of destroying the deterrent effect of judicial punishment.

In this portion of the judgment, the Court examined the separate nature of the judicial and executive powers, specifically with respect to the modification of punishments, and relied upon authorities that had addressed the distinction. The Court referred to the decision in United States v. Benz (4), which held that when a court reduces a sentence after a prisoner has already served part of the originally imposed term, the court does not intrude upon the executive’s pardoning power. On page 358 of that case, the Court articulated the difference as follows: “The judicial power and the executive power over sentenced are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To shorten a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act as much as the imposition of the sentence in the first instance.” (1) 61 L. Ed. 129 at p. 141. (2) 8 L. Ed. 640, 643, 644. (3) 69 L. Ed. 527, 530, 532, 535. (4) 75 L. Ed. 354. The Court also cited Willis, noting that “Courts may exercise the power of suspending sentence although this, like the pardoning power, partakes of the nature of an executive function; which shows that giving of suspensions of sentences is an exercise of executive power” (Willis’ Constitutional Law, p. 151). From this authority, the Court concluded that clemency, including suspension, remission, and commutation, is fundamentally an executive function, while the role of the courts is to interpret statutes and apply them without defeating the statutory scheme. Accordingly, the judicial power is exercised only on judicial considerations, and courts must approach any question of suspension with a strictly judicial eye, limited to the record and the facts proven before them. A court may not consider matters that lie outside the procedural and evidentiary record, because such considerations belong to the executive, which may take into account extra‑judicial factors, public policy, or the public good when deciding to suspend, remit, or commute a sentence. The Court emphasized that although the effects of executive clemency and judicial modification may sometimes coincide, they arise from distinct fields governed by different principles and unrelated criteria. Regarding pardons, the Court observed that they are granted for reasons other than innocence and quoted a comment that a pardon “affirms the verdict and disaffirms it not” (28 Harvard Law Review at p. 647 by Samuel Williston). Finally, the Court noted that commutation of sentences is an executive power intended to mitigate the harshness of punishment.

In this case, the Court observed that the executive possessed the authority to commute a death sentence, which meant reducing the punishment imposed by the courts. The parties did not dispute that the power of commutation remained available to the executive after a sentence had been passed and before an appeal was filed, or even while appellate proceedings were pending. The effect of such executive commutation was described as equivalent to a judicial reduction of a death sentence to life imprisonment or, historically, to transportation for life. The Court noted that, in England and the United States, the exercise of commutation was conditioned upon the convict’s acceptance, whereas Indian law imposed no comparable limitation on the executive’s power. The Court distinguished the considerations available to the judiciary from those available to the executive. While a court limited its inquiry to circumstances that justified the exercise of judicial power, the executive could act on other grounds, and its action was not subject to judicial review. The executive was identified as the sole judge of whether the facts were sufficient and whether the action was proper, and no other branch could control the executive’s exercise of that power. Regarding suspension of sentence, the Court pointed out that Section 426 of the Criminal Procedure Code expressly allowed an appellate court to suspend a sentence for reasons that had to be stated, whereas Section 401 of the Code placed no such restriction on the executive. The language of the two sections, therefore, indicated that the two powers operated in different fields, even though their effects might be similar. The Court considered the grounds on which a court acted in cases involving offenses punishable with death or life imprisonment, as outlined in Section 497 of the Criminal Procedure Code, and remarked that no comparable restrictions impeded executive action. Similarly, when the Supreme Court acted under Article 142, it did so judicially, taking into account only those facts sufficient in the judicial sense to justify its exercise of power; the same principle applied when power was exercised under rules framed by the court. Consequently, the Court concluded that the executive’s power and the judiciary’s power under Articles 161 and 142, or under Sections 401 and 426, were different in nature, were exercised on different considerations, and could even produce different effects. The executive’s exercise of authority over sentences handed down by courts represented, in its very nature, a constitutional authority that negated the court’s orders. Each time the executive exercised such power—whether by granting a pardon, commuting a sentence, issuing a reprieve, suspending, or providing respite—it conflicted with a judicial order and amounted to an overriding interference with the court’s action. The Court cited American judgments, for example Ex parte Grossman, to illustrate that although the Constitution endeavored to make the judiciary as independent as practicable, it was often regarded as the weakest of the three branches, a point that reinforced the Court’s analysis of the distinct and overriding nature of executive intervention in sentencing.

In this case the Court observed that executive action that interferes with sentences passed by the courts did not fall within the judicial power and, unless such action was illegal, was not subject to judicial review or legislative control. The Court held that the authority exercised by the Court under Order 21, Rule 5 depended on the determination of whether Article 145 could be used to derogate from the power granted to Governors by Article 161. It was reiterated that rules made under the Constitution are subordinate legislation and therefore must remain subordinate to the constitutional provisions, a fact made evident by the requirement that any amendment of constitutional articles follow the amendment procedure laid down in the Constitution, whereas rules made under the Constitution could be altered either by the Court itself with the President’s approval or by a Parliamentary enactment.

The Court noted that the language of Article 161 was of the widest amplitude and covered the various forms of clemency mentioned therein. It was affirmed that the power of pardon was not affected by Article 142 and that this power expressly included the power to grant a reprieve. The Court warned that it would be an undue construction of the pardon power to exclude from its scope that portion termed reprieve, stay of execution, suspension or respite, which differed from suspension of sentences only in terminology. Such a construction would be illogical because the plenitude of the language would remain unchanged both before the petition for leave to appeal was filed and after the decision of the appeal, yet the power would be deemed suspended during the pendency of the appeal proceedings, a view that the language of the article does not support. The Court further indicated that this interpretation conflicted with decisions of American courts where a similar power existed, and it drew an analogy to the Privy Council case Balmukand v. King Emperor, in which a reprieve was granted pending the hearing of a special leave petition up to the date the petition was taken up, heard and decided, making the reprieve necessary and proper. In Rogers v. Peck, a reprieve was granted for a period extending beyond the hearing of the appeal proceedings. The Court concluded that if the argument that suspension of the power during the pendency of an appeal was untenable, then the power to commute must be equally affected, because when exercised by the executive, commutation was essentially a reduction of sentence, a function that the Court could also order; the two were neither different in nature nor in effect.

The Court examined the reference to section 295 of the Government of India Act of 1935, which expressly preserved the prerogative of the King and of the Governor‑General as his delegate. It also considered the reference to section 209(3) of the same Act, a provision that authorised the Federal Court to stay execution in any case that was under appeal. The argument advanced was that the King’s prerogative and the Governor‑General’s delegated authority could not be unlimited because section 295(2) expressly saved those powers. Upon a close reading of these provisions and an application of the rules of construction, the Court found that the argument did not endure. Section 209(3) belongs to Part IX, “The Judicature,” Chapter 1, which deals with the Federal Court, and it empowers that Court, subject to any conditions it deems appropriate, to order a stay of execution while an appeal is pending. The text of section 209(3) states: “The Federal Court may, subject to such terms or conditions as it may think fit to impose, order a stay of execution in any case under appeal, and execution shall be stayed accordingly.” Section 295, on the other hand, is situated in Part XII, “Miscellaneous,” under the sub‑heading “Provisions as to legal matters.” Section 295(1) provides that when a person has been sentenced to death in a Province, the Governor‑General, in his discretion, shall possess all powers of suspension, remission or commutation of sentence that previously vested in the Governor‑General in Council, while expressly limiting any other authority in India outside that Province from exercising such powers, except for officers of His Majesty’s forces in court‑martial matters. Section 295(2) adds that nothing in the Act shall diminish the right of His Majesty or of the Governor‑General, if such right is delegated by His Majesty, to grant pardons, reprieves, respites or remissions of punishment. The Court observed that the phrase “stay of execution,” although a term more commonly associated with civil procedure, would not substantially aid interpretation of article 142(1) even if applied to criminal proceedings. The reliance on section 295(2) to demonstrate that the executive power is overriding was therefore misplaced, because that section merely states the existence of the prerogative without limiting it. Consequently, the power exercisable by the Governor‑General in his discretion appears to be of a narrower scope and subject to the limitation imposed by section 209(3), whereas the power of the King or the Governor‑General under section 295(2) is not similarly constrained, creating an apparent inconsistency. Moreover, the words “nothing in this Act shall derogate” in section 295(2) underscore the preservation rather than the restriction of the Crown’s prerogative.

Section 295(2) was held to merely stress the constitutional status of the King’s prerogative and of his delegate, and to act as an extra precaution, because constitutional practice recognizes the principle that “the King is not bound by any statute unless he is expressly named,” a rule accepted by this Court in matters relating to the Union and the States. The Court cited the maxim that where the King possesses any prerogative, estate, right, title or interest, a general provision of an Act cannot deprive him of those rights unless the Act specifically mentions them, referencing Broom’s Maxims, page 39 of the 1939 edition, and the decision in Province of Bombay v. Municipal Corporation of the City of Bombay, where the Crown was held not to be bound unless expressly named or bound by necessary implication. The Court observed that if one were to accept the argument that the saving words in the provision limit the King’s prerogative, it would imply that the British Parliament, when drafting the Constitution Act, deliberately intended the power of the King or of the Governor‑General as his delegate to suspend, remit or commute punishment in a manner that would prevail even while an appeal was pending before the Federal Court. The Court then set out seven reasons for rejecting the contention that articles 142 and 161 are in conflict. First, the two articles operate in separate domains, each guided by different considerations for action, and therefore can be reconciled; this view conforms to the rule of statutory co‑existence described in textbooks on statutory interpretation, which states that apparent conflicts disappear when each statute’s language is confined to its own object and the statutes run in parallel without meeting, as quoted from Maxwell on Interpretation of Statutes, 1953 edition, page 170. Second, the proper rule of construction articulated in Warburton v. Loveland, reported at 5 E.R. 499, 410, holds that when the words of a statute are clear, it is unnecessary to insert another, less clear, provision that would diminish the effect of the clear provision; the Court emphasized that this rule was applied in interpreting sections 89, 92 and 93 of the Australian Constitution in State of Tasmania v. Commonwealth of Australia, noting that the clear meaning of section 89 should not be compromised by inserting a less precise part of the statute, as such insertion would reduce the clarity of the provision.

The Court observed that to reverse the established rule would be “an absolute inversion of the rule which is applicable in such a case.” In the present matter, the language of article 161 was held to be clear and unambiguous. The Court warned that it would be an unsound construction to limit the full scope of the powers conferred by article 161 by interpreting an earlier article that deals with the powers of a different department of Government and that uses language “which speaks with less perspicuity.” The Court further noted that a material factor in interpreting the Constitution is that the two articles are situated in two separate parts. It observed that there is ample authority supporting the proposition that a construer may look to the indicia provided by the arrangement of sections and other contextual clues. In Dormer v. New Castle‑upon‑Tyne Corporation, per Slesser, L.J., the arrangement of sections into parts and their headings were described as substantive components of the Act. The Court quoted Craies on Statute Law (5th Ed.) page 165, which stated that such arrangements are “gradually winning recognition as a kind of preamble to the enactments which they precede, limiting or explaining their operation.” The Court added that these headings may serve as a better key to construction than a mere preamble, as noted on page 195 of the same work. The citations (1) 1 C.L.R. 329, 357 and (2) [1940] 2 K.B. 204, 217 (C.A.) were also referenced as supporting authority.

The Court then turned to further case law to illustrate the principle. In Inglis v. Bobertson, which concerned the interpretation of the Factors Act, Lord Herschell held that “these headings are not in my opinion mere marginal notes but the sections in the group to which they belong must be read in connection with them and interpreted in the light of them.” Viscount Simon, L.C., in Nokes v. Doncaster Amalgamated Collieries Ltd. observed that section 154, which contemplates the dissolution of a transferor company after a transfer, is found in Part IV, whereas the provision dealing with winding‑up of companies, section 294, occurs in Part V of the Companies Act 1929. These passages underscore that sections placed in different parts operate in distinct fields and were not intended to overlap or restrict one another. The Court therefore concluded that articles 142(1) and 161 address different subjects and function in separate domains, and thus were not meant to be mutually restrictive. The language of article 161 was described as general, extending equally to all classes of pardons recognized by law, whatever terminology is employed, as noted in Ex parte Wells. Consequently, if the power to pardon is absolute and may be exercised at any time on principles distinct from those governing judicial power, then imposing a restriction that suspends this power for the period an appeal is pending before the Court would constitute an unjustifiable limitation on executive authority. The Court held that the framers could not have intended the breadth of executive power to be curtailed so that it becomes suspended during the pendency of an appeal.

The Court observed that if the proposed interpretation were adopted, it would lead to an incongruous result. Under that view, when an appeal is pending before a Court of Session or a High Court, the executive power would remain abundant and would operate even during the pendency of the appeal, whereas the same power would become restrictive when the appeal is brought before the Supreme Court. The Court referred to the authorities cited at (1) [1898] A.C. 616, 630; (2) [1940] A.C. 1114; and (3) 15 L. Ed., 421, 424 in support of this observation.

The Court explained that Article 161 is a later constitutional provision and that when it was enacted the framers had already incorporated Article 72 as well as Articles 142(1) and 145. It was therefore unreasonable to assume that the framers intended to limit the executive power merely by juxtaposing these articles. The Court then set out the rules of construction that it applied. First, it is presumed that the legislature does not deprive the State of its prerogative powers unless the intention is expressed in clear terms or by necessary implication, as illustrated in Province of Bombay v. Municipal Corporation of the City of Bombay and Director of Rationing & Distribution v. Corporation of Calcutta. Second, the Court said that it is impossible to suppose that a material change in the Governor’s constitutional powers could be effected by a mere side‑wind. Third, the law will not permit alteration of a statute by construction when the words can operate properly without such alteration, as held in Kutner v. Philips. Fourth, the Court rejected the notion that the Constitution could give something with one hand and take it away with the other, referring to Dormer v. New Castle‑upon‑Tyne Corporation. Fifth, where two provisions are in conflict, the later provision must prevail, a principle stated in Wood v. Riley, per Keating, J.

The Court then considered the nature of the powers involved. It described the power of the Governor to grant pardons under Article 161 as a specific power that historically was vested in the colonial and British Governors of Indian provinces. By contrast, the power conferred by Article 142(1) on the courts is a general power to do complete justice in any cause or matter. The Court noted that if Articles 161 and 142(1) dealt with the same subject matter, as reflected in the authorities (1) 73 I.A. 271; (2) Criminal Appeal No. 158 Of 1956; (3) [1891] 2 Q.B. 267, 272; (4) [1940] 2 K.B. 204, 217 (C.A.); and (5) [1867‑8] 3 C.P. 26, then Article 161 must prevail over Article 142(1), consistent with the constitutional scheme discussed earlier.

Consequently, the Court concluded that the petitioner should be granted the exemption sought and that the special leave petition should be heard on its merits. In accordance with the majority judgment, the petition was dismissed.