Facts of the case are that an accused of Nirbhaya case filed a petition in Supreme Court challenging the order of rejection of his mercy petition by His Excellency the President of India, inter alia, on various grounds that the settled principles of consideration of mercy petition have not been followed.
Supreme Court bench comprising Justice R. Banumathi, Justice Ashok Bhushan and Justice A.S. Bopanna while dismissing the petition relied upon Epuru Sudhakar and Another v. Govt. of A.P. and Others, in which the Supreme Court had held:
“The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness.
Two important aspects were also highlighted by learned amicus curiae; one relating to the desirability of indicating reasons in the order granting pardon/remission while the other was an equally more important question relating to power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration. According to learned amicus curiae, reasons are to be indicated, in the absence of which the exercise of judicial review will be affected.”
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