'Judicial Review Is Available'

ARIJIT PASAYAT

CASE NO.:
Writ Petition (crl.) 284-285 of 2005

PETITIONER:
Epuru Sudhakar & Anr.

RESPONDENT:
Govt. of A.P. & Ors.

DATE OF JUDGMENT:
11/10/2006

BENCH:
ARIJIT PASAYAT

JUDGMENT:
J U D G M E N T

ARIJIT PASAYAT, J.

Challenge in this writ petition under Article 32of the Constitution of India, 1950 (in short the 'Constitution') is to the orderpassed by Government of Andhra Pradesh, represented by its Principal Secretarywhereby Gowru Venkata Reddy-respondent No.2 was granted remission of unexpiredperiod of about seven years imprisonment. GOMs. No.170 dated 11.8.2005 in thisregard is challenged.

Factual scenario as per petitioners is asfollows:

Petitioner No.1 is the son of late Sh. EpuruChinna Ramasubbaiah who was murdered along with another person on 19.10.1995.Petitioner No.2 claims to be the son of one late Sh. Tirupati Reddy who wasallegedly murdered by respondent No.2 while he was on bail in the murder case offather of petitioner No.1. In the case relating to the murder of late Sh. EpuruChinna Ramasubbaiah and one Ambi Reddy, respondent No.2 faced trial andultimately the matter came before this Court in Criminal Appeal Nos. 519-521 of2003 which was disposed of by this Court by judgment dated 19.11.2003 and theconviction of respondent No.2 was altered from one under Section 302 of theIndian Penal Code, 1860 (in short the 'IPC') to Section 304(1) read with Section109 IPC and custodial sentence of 10 years' rigorous imprisonment was imposed.Conviction relating to some other sentences was maintained. On 28.5.2003, therespondent No.3 wife of respondent No.2 submitted a representation for grant ofparole to respondent No.2 and on 18.10.2003 parole was granted for a period of15 days but the same was cancelled on 30.10.2003 by the State Government in viewof the report sent by Superintendent of Police, Kurnool that on account ofrespondent No.2's release on parole there was a likelihood of breach of peaceand law and order if the respondent No.2 visits Nandikotkur AssemblyConstituency. Respondent No.3 contested the election to the Andhra PradeshAssembly Election and on 12.5.2004 was elected as member of LegislativeAssembly. On 14.5.2004 she made a representation for grant of parole torespondent No.2. Same was granted on 19.5.2004 and was extended from time totime. On 18.7.2004 fourth extension for 15 days was granted. On 10.10.2004respondent No.3 made a representation to respondent No.1 seeking pardon torespondent No.2 by exercise of power under Article 161 of the Constitutionalleging that he was implicated in false cases due to political rivalry. On18.10.2004 during the pendency of the petition for pardon, one month parole wasgranted. On 11.8.2005 the Governor of Andhra Pradesh purportedly exercised powerunder Article 161 of the Constitution and granted remission of the unexpiredsentence of respondent No.2. Director General and Inspector General of Police(Correction Services) Andhra Pradesh were directed to take action for release ofrespondent No.2 and in fact on 12.8.2005 the Superintendent of Central Prison,Cherlapally, R.R. District directed release of respondent No.2.

The writ petition has been filed inter aliaalleging that the grant of remission (described in the writ petition as grant ofpardon) was illegal, relevant materials were not placed before the Governor, andwithout application of mind impugned order was passed. The recommendations madefor grant of remission were based on irrelevant and extraneous materials. Thefactual scenario has not been placed before the Governor in the properperspective. The sole basis on which respondent No.3 asked for pardon wasalleged implication in false cases due to political rivalry. In view of thisCourt's judgment holding the respondent No.2 guilty, the said plea could nothave been even considered as a basis for grant of pardon. Since the grant ofpardon is based on consideration of irrelevant materials and non-considerationof relevant materials the same is liable to be set aside.

Learned counsel for the respondent-State andrespondent Nos.2 and 3 has strenuously contended that the petition is theoutcome of a political vendetta. All relevant materials have been taken intoaccount by the Governor, a high constitutional authority who passed the ordergranting remission. It is submitted that the petitioner has confused betweenpardon and remission of sentence. It is a case where materials existed whichwarranted the grant of remission and this Court should not interfere in thematter. Considering the limited scope for judicial review the writ petitiondeserves to be dismissed.

Considering the fact that in large number ofcases challenge is made to the grant of pardon or remission, as the case may be,we had requested Mr. Soli J Sorabjee to act as Amicus Curiae. He has highlightedvarious aspects relating to the grant of pardon and remission, as the case maybe, and the scope for judicial review in such matters. He has suggested thatconsidering the frequency with which pardons and/or the remission are beinggranted, in the present political scenario of the country it would beappropriate for this Court to lay down guidelines so that there is no scope formaking a grievance about the alleged misuse of power.

Learned counsel for the respondents on the otherhand submitted that though in Maru Ram v. Union of India & Others [1981 (1)SCC 107] this Court had indicated certain recommendatory guidelines, the samedid not find acceptance in Kehar Singh and Another v. Union of India and Another[1989(1) SCC 204]. As a matter of fact in a later decision in Ashok Kumar @ Goluv. Union of India and Ors. (1991 (3) SCC 498) the alleged apparentinconsistencies in the view was highlighted and a 3-Judge Bench held that layingdown guidelines would be inappropriate.

The relevant constitutional provisions regardingthe grant of pardon, remissions, suspension of sentence, etc. by the Presidentof India and the Governor of a State are as follows:

"Article 72. Power of President to grantpardons, etc. and to suspend, remit or commute sentences in certain cases

(1) The President shall have the power to grantpardons, reprieves, respites or remissions of punishment or to suspend, remit orcommute the sentence of any person convicted of any offence:

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shallaffect the power conferred by law on any officer of the Armed Forces of theUnion to suspend, remit or commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shallaffect the power to suspend, remit or commute a sentence of death exercisable bythe Governor of a State under any law for the time being in force."

"Article 161 Power of Governor to grantpardons, etc., and to suspend, remit or commute sentences in certain cases The Governor of a State shall have the power to grant pardons, reprieves,respites or remissions of punishment or to suspend, remit or commute thesentence of any person convicted of any offence against any law relating to amatter to which the executive power of the State extends."

The provision corresponding to Article 72 in theGovernment of India Act 1935 (in short 'the Government Act') was Section 295which reads as follows:

"(1) Where any person has been sentenced todeath in a Province, the Governor-General in his discretion shall have all suchpowers of suspension, remission or commutation of sentence as were vested in theGovernor- General in Council immediately before the commencement of Part III ofthis Act, but save as aforesaid no authority in India outside a Province shallhave any power to suspend, remit or commute the sentence of any person convictedin the Province.

Provided that nothing in this sub-section affectsany powers of any officer of His Majesty's forces to suspend, remit or commute asentence passed by a Court- Martial.

(2) Nothing in this Act shall derogate from theright of His Majesty, or of the Governor- General, if any such right isdelegated to him by His Majesty, to grant pardons, reprieves, respites orremissions of punishment."

There was no provision in the Government Actcorresponding to Article 161 of the Constitution.

The above constitutional provisions were debatedin the Constituent Assembly on 29th December 1948 and 17th September 1949 [seeConstituent Assembly Debates, Vol.7, pages 1118-1120 and Vol. 10, page 389]. Thegrounds and principles on which these powers should be exercised were neitherdiscussed nor debated [See Framing of India's Constitution: A Study, 2"Edition, Dr. Subhash C Kashyap, pages 367-371 , pages 397-399].

In addition to the above constitutionalprovisions the Code of Criminal Procedure 1973 (in short 'Cr.P.C.') provides forpower to suspend or remit sentences and the power to commute sentence in Section432 and Section 433 respectively.

Section 433A lays down restrictions on provisionsof remission or commutation in certain cases mentioned therein. Section 434confers concurrent power on the Central Government in case of death sentence.

Section 435 provides that the power of the StateGovernment to remit or commute a sentence where the sentence is in respect ofcertain offences specified therein will be exercised by the State Governmentonly after consultation with the Central Government.

Sections 54 and 55 of IPC confer power on theappropriate Government to commute sentence of death or sentence of imprisonmentfor life as provided therein.

Sections 432 and 433 Cr.P.C. read as follows:

"432. Power to suspend or remitsentences.( I) When any person has been sentenced to punishment for anoffence, the appropriate Government may, at any time, without conditions or uponany conditions which the person sentenced accepts, suspend the execution of hissentence or remit the whole or any part of the punishment to which he has beensentenced.

(2) Whenever an application is made to theappropriate Government for the suspension or remission of a sentence, theappropriate Government may require the presiding Judge of the Court before or bywhich the conviction was had or confirmed, to state his opinion as to whetherthe application should be granted or refused, together with his reasons for suchopinion and also to forward with the statement of such opinion a certified copyof the record of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has beensuspended or remitted is, in the opinion of the appropriate Government, notfulfilled, the appropriate Government may cancel the suspension or remission,and thereupon the person in whose favour the sentence has been suspended orremitted may. if at large, be arrested by any police officer, without warrantand remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence issuspended or remitted under this section may be one to be fulfilled by theperson in whose favour the sentence is suspended or remitted, or one independentof his will.

(5) The appropriate Government may. by generalrules or special orders, give directions as to the suspension of sentences andthe conditions on which petitions should be presented and dealt with:

Provided that in the case of any sentence (otherthan a sentence of fine ) passed on a male person above the age of eighteenyears, no such petition by the person sentenced or by other person on his behalfshall be entertained, unless the person sentenced is in jail and,-

(a) where such petition is made by the personsentenced, it is presented through the officer in charge of the jail; or

(b) where such petition is made by any otherperson it contains a declaration that the person sentenced is in jail.

(6) The provisions of the above sub-sectionsshall also apply to any order passed by a Criminal Court under any section ofthis Code or of any other law which restricts the liberty of any person orimposes any liability upon him or his property.

(7) In this section and in section 433, theexpression "appropriate Government" means,-

(a) in cases where the sentence is for an offenceagainst, or the order referred to in sub-section (6) is passed under, any lawrelating to a matter to which the executive power of the Union extends, theCentral Government;

(b) in other cases the Government of the Statewithin which the offender is sentenced or the said order is passed.

433. Power to commute sentence._The appropriateGovernment may, without the consent of the person sentenced, commute-

(a) a sentence of death, for any other punishmentprovided by the Indian Penal Code (45 of l860);

(b) a sentence of imprisonment for life, forimprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment forsimple imprisonment for any term to which that person might have been sentenced,or for fine;

(d) a sentence of simple imprisonment forfine".

The philosophy underlying the pardon power isthat "every civilized country recognizes, and has therefore provided for,the pardoning power to be exercised as an act of grace and humanity in propercases. Without such a power of clemency, to be exercised by some department orfunctionary of a government, a country would be most imperfect and deficient inits political morality, and in that attribute of Deity whose judgments arealways tempered with mercy." [See 59 American Jurisprudence 2d, page 5].

The rationale of the pardon power has beenfelicitously enunciated by the celebrated Justice Holmes of the United StatesSupreme Court in the case of Biddle v. Perovich in these words [71 L. Ed. 1161at 1163]:

"A pardon in our days is not a private actof grace from an individual happening to possess power. It is a part of theconstitutional scheme. When granted, it is the determination of the ultimateauthority that the public welfare will be better served by inflicting less thanwhat the judgment fixed."

(emphasis added)

"Pardon and Parole" as per Corpus JurisSecundum (Vol.67-A) reads as follows: (Pages 16 and 17)

"The pardoning power is founded onconsiderations of the public good, and is to be exercised on the ground that thepublic welfare, which is the legitimate object of all punishment, will be aswell promoted by a suspension as by an execution of the sentence. It may also beused to the end that justice be done by correcting injustice, as whereafter-discovered facts convince the official or board invested with the powerthat there was no guilt or that other mistakes were made in the operation orenforcement of the criminal law. Executive clemency also exists to afford relieffrom undue harshness in the operation or enforcement of criminal law."

Interests of society and convict

(1) Acts of leniency by pardon are administeredby the executive branch of the government in the interests of society and thediscipline, education, and reformation of the person convicted. III- People v.Nowak, 35, N.E. 2d 63, 387 III, II.

(2) A pardon is granted on the theory that theconvict has seen the error of his ways, that society will gain nothing by hisfurther confinement and that he will conduct himself in the future as anupright, law-abiding citizen.

Matter known to counsel

The pardoning power is set up to preventinjustice to a person who has been convicted, especially when the facts of suchinjustice were not properly produced in the trial court, but such power is not aproper remedy on account of failure to use any matter which was known todefendant or his counsel and was available at time of new trial motion.

Showing that convection was on perjured testimony"Pardon and Parole" as stated in AMERICAN JURISPRUDENCE (SecondEdition) (Volume 59) reads as follows:

I. INTRODUCTORY

1. History of pardoning power.

Every civilized country recognizes, and hastherefore provided for, the pardoning power to be exercised as an act of graceand humanity in proper cases. Without such a power of clemency, to be exercisedby some department or functionary of a Government, a country would be mostimperfect and deficient in its political morality, and in that attribute ofDeity whose judgments are always tempered with mercy. In England, this power hasbeen exercised from time immemorial, and has always been regarded as a necessaryattribute of sovereignty. In the United States, this power is extended to thePresident by the United States Constitution, and in the various states andterritories it is either conferred by constitutional provision or organic act,or provided for by statute, the power usually being conferred upon the governoror upon a board of which the governor is a member. In some instances, however,the governor's power is so limited as to render an arbitrary exerciseimpossible.

2. Validity of contract to procure pardon;criminal liability. While the earlier cases uniformly held agreements to securea pardon, parole, or commutation of sentence illegal irrespective of theservices rendered or contemplated, the more recent decisions take the view thatsuch contracts are valid or invalid according to the character of the servicescontemplated. Although there is some conflict of opinion, contracts entered intoto obtain a pardon, parole, or commutation of sentence have generally beenupheld where the services contemplated are not other than the properpresentation of the case before the pardoning power."

Reprieve

A reprieve, from the French word "reprendre,"to take back, is the withdrawing of a sentence for an interval of time, wherebythe execution is suspended. It is merely the postponement of the execution of asentence for a definite time, or to a day certain. It does not and cannot defeatthe ultimate execution of the judgment of the court, but merely delays ittemporarily. Reprieves at common law are of three kinds:

1. ex mandato regis, from the mere pleasure ofthe Crown;

2. ex arbitrio judicis, the power to grant whichbelongs of common right to every tribunal which is invested with authority toaward execution; and

3. ex necessitate legis, required by law to begranted under certain circumstances, as when a woman convicted of a capitaloffence alleges pregnancy of a quick child in delay of execution, or when aprisoner has become insane between the time of sentence and the time fixed forexecution.

In Sir William Wades' Administrative Law (NinthEdition) the position relating to pardon is stated as follows:

"The royal prerogative

The prerogative powers of the Crown havetraditionally been said to confer discretion which no court can question; andthere was long a dearth of authority to the contrary. But it may be that thiswas because the decided cases involved discretions which are, as has been laiddown in the House of Lords, inherently unsuitable for judicial review, 'such asthose relating to the making of treaties, the defence of the realm, theprerogative of mercy, the grant of honours, the dissolution of Parliament andthe appointment of ministers as well as others'. But at the same time the Houseof Lords held that the court could review a ministers action (forbidding tradeunion membership by certain civil servants) under authority delegated to him byprerogative Order in Council, so that the principles of natural justice wouldapply. Administrative action was held to be reviewable in proceedings againstthe responsible minister without distinction as to the origin of the power,whether statute or common law. In later cases it was held that the dismissal ofa civil servant involved 'a sufficient public law element' to be subject toJudicial review and that an unfair compensation award by the civil serviceappeal board should be quashed. So now it may be said that the royal prerogativedoes not per se confer unreviewable discretion, but that many of the powerscontained in it will be of a kind with which the courts will not concernthemselves. It may be the prerogative acts of the Crown itself, though taken onthe advice of ministers are immune from review, whereas the action of ministers,though authorised by delegation of prerogative power, is reviewable.But this isan artificial distinction, and if the case were strong enough even an Order inCouncil might prove to be reviewable in a declaratory judgment.

These propositions are founded on the widedefinition of prerogative which has been criticized earlier. The making oftreaties, for example, has no effect on the law of this country, so that thereis no exercise of power which can concern the courts. It might be calledprerogative without power, while the employment of civil servants might becalled power without prerogative. A case where there may be neither prerogativenor power is the grant and refusal of passports, which has been claimed to bewholly within the prerogative and discretion of the Crown. A passport is merelyan administrative device, the grant or cancellation of which probably involvesno direct legal consequences, since there appears to be no justification forsupposing that, in law as opposed to administrative practice, a Citizen's rightto leave or enter the country is dependent upon the possession of a passport.The arbitrary power claimed by the Crown has now been made subject to judicialreview along with various other non-legal powers discussed later. Othercountries were ahead of Britain in protecting this necessary civil right.

At least it is now judicially recognised thatprerogative power is as capable of abuse as is any other power, and that the lawcan sometimes find means of controlling it. The prerogative has many times beenrestricted both by judicial decision and by statute. It is for the court todetermine the legal limits of the prerogative, and they may include the samerequirement of reasonable and proper exercise as applies to statutorypowers though with this difference, that it cannot be based upon thepresumed intention of Parliament. In one unusual case, where a Parliamentarybasis could be found because action taken by a minister under a treaty was heldto be impliedly prohibited by a statute," Lord Denning MR discussed thenature of the prerogative and said:

Seeing that the prerogative is a discretionarypower to be exercised for the public good, it follows that its exercise can beexamined by the courts just as any other discretionary power which is vested inthe executive.

Then after citing cases of abuse of statutorypower he concluded:

Likewise it seems to me that when discretionarypowers are entrusted to the executive by the prerogative in pursuance of thetreaty-making power the courts can examine the exercise of them so as to seethat they are not used improperly or mistakenly.

Although this last remark was said in the Houseof Lords to be 'far too wide', in today's atmosphere it seems clear that thecourt would entertain a complaint that, for example, a royal pardon had beenobtained by fraud or granted by mistake or for improper reasons. The High Courthas gone so far as to review a decision of the Home Secretary not to recommend aposthumous free pardon for a youth hanged for murder forty years previously, onthe ground that he considered only an unconditional pardon and failed to takeaccount of other possibilities. Although the court made no order or declarationand merely invited the Home Secretary to look at the matter again, it clearlytook a long step towards judicial review of the prerogative of mercy. Forexample it was clear that the Home Secretary had refused to pardon someonesolely on the ground of their sex, race or religion, the courts would beexpected to interfere and our judgment would be entitled to do so.

In New Zealand the Court of Appeal has held thatthe prerogative power of pardon is not reviewable 'at any rate at present', butthat the position might change justice so required; that the prerogativecharacter of the power did not exempt it from review; but that the existinglegal and administrative safeguards were adequate so that an extension ofjudicial review was unnecessary.

A further question is whether the law shouldconcern itself with the Crown's exercise of the ordinary powers and libertieswhich all persons possess, as in the making of contracts and the conveyance ofland. It has hitherto been assumed that in this area the Crown has the same freediscretion as has any other person. But where such powers are exercised forgovernmental purposes it is arguable that the courts should be prepared tointervene, as a matter of public ethics, as a safeguard against abuse. They donot allow local authorities to act arbitrarily or vindictively in evictingtenants, letting sports grounds or placing advertisements, for example. Thoseare technically statutory powers (since all local authorities are statutory),but they correspond to ordinary powers and liberties. If, as the House of Lordsholds, the source of power is irrelevant, it would not seem impossible forjudicial review to be extended to this 'third source' of public power which isneither statutory nor prerogative but is a remnant from the days of personalgovernment. But the 'grotesquely undemocratic idea that public authorities havea private capacity is deeply embedded in our legal culture', and such judicialauthority as there is, is not encouraging.

We shall deal with the extent of power forjudicial review as highlighted by learned counsel for the parties and learnedAmicus Curie before we deal with the factual scenario.

It is fairly well settled that the exercise ornon-exercise of pardon power by the President or Governor, as the case may be,is not immune from judicial review. Limited judicial review is available incertain cases.

In Maru Ram's case (supra) it was held that allpublic power, including constitutional power, shall never be exercisablearbitrarily or mala fide and, ordinarily, guidelines for fair and equalexecution are guarantors of the valid play of power.

It is noteworthy that in Kehar Singh's case(supra) the contention that the power of pardon can be exercised for politicalconsideration was unequivocally rejected. In Maru Ram's case (supra) it was heldthat consideration of religion, caste, colour or political loyalty are totallyirrelevant and fraught with discrimination.

In Kehar Singh's case (supra) it was held thatthe order of the President cannot be subjected to judicial review on its meritsexcept within the strict limitations delineated in Maru Ram's case (supra). Thefunction of determining whether the act of a constitutional or statutoryfunctionary falls within the constitutional or legislative conferment of power,or is vitiated by self-denial on an erroneous appreciation of the full amplitudeof the power is a matter for the court.

In Kehar Singh's case (supra), placing relianceon the doctrine of the division (separation) of powers it was pleaded, that itwas not open to the judiciary to scrutinize the exercise of the"mercy" power. In dealing with this submission this Court held thatthe question as to the area of the President's power under Article 72 fallssquarely within the judicial domain and can be examined by the court by way ofjudicial review.

As regards the considerations to be applied to apetition for pardon/remission in Kehar Singh's case (supra) this Court observedas follows:

"As regards the considerations to be appliedby the President to the petition, we need say nothing more as the law in thisbehalf has already been laid down by this Court in Maru Ram."

In the case of Swaran Singh v. State of U.P.[1998 (4) SCC 75] after referring to the judgments in the cases of Maru Ram'scase (supra) and Kehar Singh's case (supra) this Court held as follows:

"we cannot accept the rigid contention ofthe learned counsel for the third respondent that this court has no power totouch the order passed by the Governor under Article 161 of the Constitution. Ifsuch power was exercised arbitrarily, mala fide or in absolute disregard of thefiner canons of the constitutionalism, the by-product order cannot get theapproval of law and in such cases, the judicial hand must be stretched toit."

The factual scenario in Swaran Singh's case(supra) needs to be noted. One Doodh Nath was found guilty of murdering oneJoginder Singh and was convicted to imprisonment for life. His appeals to theHigh Court and Special Leave Petition to this Court were unsuccessful. However,within a period of less than 2 years the Governor of Uttar Pradesh grantedremission of the remaining long period of his life sentence. This Court quashedthe said order of the Governor on the ground that when the Governor was notposted with material facts, the Governor was apparently deprived of theopportunity to exercise the powers in a fair and just manner. Conversely, theimpugned order, it was observed "fringes on arbitrariness".

The Court held that if the pardon power "wasexercise arbitrarily, mala fide or in absolute disregard of the finer canons ofthe constitutionalism, the by-product order cannot get the approval of law andin such cases, the judicial hand must be stretched to it". The Courtfurther observed that when the order of the Governor impugned in theseproceedings is subject to judicial review within the strict parameters laid downin Maru Ram's case (supra) and reiterated in Kehar Singh's case (supra):"we feel that the Governor shall reconsider the petition of Doodh Nath inthe light of those materials which he had no occasion to know earlier.",and left it open to the Governor of Uttar Pradesh to pass a fresh order in thelight of the observations made by this Court.

In the case of Satpal and Anr. v. State ofHaryana and Ors. [2000 (5) SCC 170], this Court observed that the power ofgranting pardon under Article 161 is very wide and does not contain anylimitation as to the time at which and the occasion on which and thecircumstances in which the said powers could be exercised.

Thereafter the Court held as follows:

"the said power being a constitutionalpower conferred upon the Governor by the Constitution is amenable to judicialreview on certain limited grounds. The Court, therefore, would be justified ininterfering with an order passed by the Governor in exercise of power underArticle 161 of the Constitution if the Governor is found to have exercised thepower himself without being advised by the Government or if the Governortransgresses the jurisdiction in exercising the same or it is established thatthe Governor has passed the order without application of mind or the order inquestion is mala fide one or the Governor has passed the order on someextraneous consideration."

The principles of judicial review on the pardonpower have been re-stated in the case of Bikas Chatterjee v. Union of lndia[2004 (7) SCC 634].

In Mansukhlal Vithaldas Chauhan v. State ofGujarat 1997 (7) SCC 622 it was inter-alia held as follows:

"25. This principle was reiterated in TataCellular v. Union of India (1994 (6) SCC 651 in which it was, inter alia, laiddown that the Court does not sit as a court of appeal but merely reviews themanner in which the decision was made particularly as the Court does not havethe expertise to correct the administrative decision. If a review of theadministrative decision is permitted, it will be substituting its own decisionwhich itself may be fallible. The Court pointed out that the duty of the Courtis to confine itself to the question of legality. Its concern should be:

1. Whether a decision-making authority exceededits powers?;

2. committed an error of law;

3. committed a breach of the rules of naturaljustice;

4. reached a decision which no reasonabletribunal would have reached; or

5. abused its powers.

26. In this case, Lord Denning was quoted assaying: (SCC pp. 681-82, para 83)

"Parliament often entrusts the decision of amatter to a specified person or body, without providing for any appeal. It maybe a judicial decision, or a quasi-judicial decision, or an administrativedecision. Sometimes Parliament says its decision is to be final. At other timesit says nothing about it. In all these cases the courts will not themselves takethe place of the body to whom Parliament has entrusted the decision. The courtswill not themselves embark on a rehearing of the matter. See Healey v. Ministerof Health (1955 (1) QB 221)."

27. Lord Denning further observed as under: (p.682)

"If the decision-making body is influencedby considerations which ought not to influence it; or fails to take into accountmatters which it ought to take into account, the court will interfere. SeePadfield vs. Minister of Agriculture, Fisheries and Food (1968 AC 997).(emphasis supplied)"

28. In Sterling Computers Ltd. v. M&NPublications Ltd. ((1993 (1) SCC 445) it was pointed out that while exercisingthe power of judicial review, the Court is concerned primarily as to whetherthere has been any infirmity in the decision-making process? In this case, thefollowing passage from Professor Wade's Administrative Law was relied upon: (SCCp. 457, para 17)

"The doctrine that powers must be exercisedreasonably has to be reconciled with the no less important doctrine that thecourt must not usurp the discretion of the public authority which Parliamentappointed to take the decision. Within the bounds of legal reasonableness is thearea in which the deciding authority has genuinely free discretion. If it passesthose bounds, it acts ultra vires. The court must therefore resist thetemptation to draw the bounds too tightly, merely according to its own opinion.It must strive to apply an objective standard which leaves to the decidingauthority the full range of choices which legislature is presumed to haveintended."

(emphasis supplied)

29. It may be pointed out that this principle wasalso applied by Professor Wade to quasi- judicial bodies and their decisions.Relying upon decision in R. v. Justices of London(1895 1 QB 214). Professor Wadelaid down the principle that where a public authority was given power todetermine matter, mandamus would not lie to compel it to reach some particulardecision.

30. A Division Bench of this Court comprisingKuldip Singh and B.P. Jeevan Reddy, JJ. in U.P. Financial Corpn. v. Gem Cap(India) (P) Ltd. (1993 (2) SCC 299) observed as under: (SCC pp. 306-07, para 11)

"11. The obligation to act fairly on thepart of the administrative authorities was evolved to ensure the rule of law andto prevent failure of justice. This doctrine is complementary to the principlesof natural justice which the quasi- judicial authorities are bound to observe.It is true that the distinction between a quasi- judicial and the administrativeaction has become thin, as pointed out by this Court as far back as 1970 in A.K.Kraipak v. Union of India (1969 (2) SCC 262). Even so the extent of judicialscrutiny/judicial review in the case of administrative action cannot be largerthan in the case of quasi- judicial action. If the High Court cannot sit as anappellate authority over the decisions and orders of quasi-judicial authoritiesit follows equally that it cannot do so in the case of administrativeauthorities. In the matter of administrative action, it is well known, more thanone choice is available to the administrative authorities; they have a certainamount of discretion available to them. They have 'a right to choose betweenmore than one possible course of action upon which there is room for reasonablepeople to hold differing opinions as to which is to be preferred'. (Lord Diplockin Secy. of State for Education and Science v. Tameside Metropolitan BoroughCouncil 1977 AC 1014 at p.1064.) The Court cannot substitute its judgment forthe judgment of administrative authorities in such cases. Only when the actionof the administrative authority is so unfair or unreasonable that no reasonableperson would have taken that action, can the Court intervene." (emphasissupplied)

The position, therefore, is undeniable thatjudicial review of the order of the President or the Governor under Article 72or Article 161, as the case may be, is available and their orders can beimpugned on the following grounds:

(a) that the order has been passed withoutapplication of mind;

(b) that the order is mala fide;

(c) that the order has been passed on extraneousor wholly irrelevant considerations;

(d) that relevant materials have been kept out ofconsideration;

(e) that the order suffers from arbitrariness

Two important aspects were also highlighted bylearned Amicus Curiae; one relating to the desirability of indicating reasons inthe order granting pardon/remission while the other was an equally moreimportant question relating to power to withdraw the order of grantingpardon/remission, if subsequently, materials are placed to show that certainrelevant materials were not considered or certain materials of extensive valuewere kept out of consideration. According to learned Amicus Curiae, reasons areto be indicated, in the absence of which the exercise of judicial review will beaffected.

So far as desirability to indicate guidelines isconcerned in Ashok Kumar's case (supra) it was held as follows :

"17- In Kehar Singh's case (supra) on thequestion of laying down guidelines for the exercise of power under Article 72 ofthe constitution this Court observed in paragraph 16 as under: (SCC pp. 217-18,para 16)

"It seems to us that there is sufficientindication in the terms of Article 72 and in the history of the power enshrinedin that provision as well as existing case law, and specific guidelines need notbe spelled out. Indeed, it may not be possible to lay down any precise, clearlydefined and sufficiently channelised guidelines, for we must remember that thepower under Article 72 is of the widest amplitude, can contemplate a myriadkinds and categories of cases with facts and situations varying from case tocase, in which the merits and reasons of State may be profoundly assist byprevailing occasion and passing time. And it is of great significance that thefunction itself enjoys high status in the constitutional scheme".

These observations do indicate that theConstitution Bench which decided Kehar Singh's case (supra) was of the view thatthe language of Article 72 itself provided sufficient guidelines for theexercise of power and having regard to its wide amplitude and the status of thefunction to be discharged thereunder, it was perhaps unnecessary to spell outspecific guidelines since such guidelines may not be able to conceive of allmyriads kinds and categories of cases which may come up for the exercise of suchpower. No doubt in Maru Ram's case (supra) the Constitution Bench did recommendthe framing of guidelines for the exercise of power under Articles 72/161 of theConstitution. But that was a mere recommendation and not ratio decidendi havinga binding effect on the Constitution Bench which decided Kehar Singh's case(supra). Therefore, the observation made by the Constitution Bench in KeharSingh's case (supra) does not upturn any ratio laid down in Maru Ram'scase(supra). Nor has the Bench in Kehar Singh"s case (supra) said any thingwith regard to using the provisions of extant Remission Rules as guidelines forthe exercise of the clemency powers."

In Kehar Singh's case (supra) this Court heldthat:

"There is no question involved in the caseof asking for reasons for the Presidents' Order".

The same obviously means that the affected partyneed not be given the reasons. The question whether reasons can or cannot bedisclosed to the Court when the same is challenged was not the subject matter ofconsideration. In any event, the absence of any obligation to convey the reasonsdoes not mean that there should not be legitimate or relevant reasons forpassing the order.

In S.R. Bommai and Ors. v. Union of India andOrs. (1994 (3) SCC 1) in the context of exercise of power under Article 356 ofthe Constitution it was observed at page 109, para 87 as follows:

"When the Proclamation is challenged bymaking out a prima facie case with regard to its invalidity, the burden would beon the Union Government to satisfy that there exists material which showed thatthe Government could not be carried on in accordance with the provision of theConstitution. Since such material would be exclusively within the knowledge ofthe Union Government, in view of the provision of Section 106 of the EvidenceAct, the burden on proving the existence of such material would be on the UnionGovernment."

The position if the Government chooses not todisclose the reasons or the material for the impugned action was stated in thewords of Lord Upjohn in the landmark decision in Padfield and Ors. v. Ministerof Agriculture, Fisheries and Food and Ors. (1968 (1) All E.R. 694) at p.719:

"if he does not give any reason for hisdecision it may be, if circumstances warrant it, that a court may be at libertyto come to the conclusion that he had no good reason for reaching thatconclusion.."

The same approach was adopted by Justice RustamS. Sidhwa of the Lahore High Court in Muhammad Sharif v. Federation of Pakistan(PLD 1988 Lah 725) where at p.775 para 13 the learned Judge observed as follows:

"I have no doubt that both the Governmentsare not compelled to disclose all the reasons they may have when dissolving theAssemblies under Articles 58 (2)(b) and 112(2)(b). If they do not choose todisclose all the material, but only some, it is their pigeon, for the case willbe decided on a judicial scrutiny of the limited material placed before theCourt and if it happens to be totally irrelevant or extraneous, they mustsuffer."

Justice Sidhwa's aforesaid observations have beenreferred to and approved in S.R. Bommai's case (supra).

Since there is a power of judicial review,however, limited it may be, the same can be rendered to be an exercise infutility in the absence of reasons.

The logic applied by this Court in Bommai's case(supra) in the context of Article 74(2) is also relevant. It was observed inparas 153 and 434 as follows:

"153-Article 74(2) is not a bar against thescrutiny of the material on the basis of which the President had arrived at hissatisfaction.

434- Article 74(2) merely bars an enquiry intothe question whether any and if so, what advice was tendered by the Ministers tothe President. It does not bar the court from calling upon the Union Council ofMinisters (Union of India) to disclose to the court the material upon which thePresident had formed the requisite satisfaction. The material on the basis ofwhich advice was tendered does not become part of the advice. Even if thematerial is looked into by or shown to the President, it does not partake thecharacter of advice."

So far as the second aspect relating towithdrawal is concerned, it is submitted that though there is no specificreference in this regard in either Article 72 or Article 161 of the Constitutionyet by application of the provisions of the General Clauses Act, 1897 (in shortthe 'General Clauses Act') the same would be permissible. It is also highlightedthat similar provisions are specifically provided in Sections 432 and 433 Cr.P.C.Merely because Article 72 and Article 161 of the Constitution have not been soprovided specifically that would not mean that such power was not intended to beexercised.

Sections 14 and 21 of the General Clauses Actdeal with powers conferred to be exercisable from time to time and a power toissue, to include power to add to, amend, vary or rescind notifications, orders,rules or bye-laws. They read as follows:

"14. Powers conferred to be exercisable fromtime to time- (1) Where, by any Central Act or Regulation made after thecommencement of this Act, any power is conferred then unless a differentintention appears that power may be exercised from time to time as occasionrequires.

(2) This section applies also to all Central Actsand Regulations made on or after the fourteenth day of January, 1887.

21. Power to issue, to include power to add to,amend, vary or rescind notifications, orders, rules or bye-laws- Where, by anyCentral Act or Regulation, a power to issue notifications orders, rules orbye-laws is conferred, then that power includes a power, exercisable in the likemanner and subject to the like sanction and conditions (if any), to add to,amend, vary or rescind any notifications, orders, rules or bye- laws soissued."

The scope and ambit of Sections 14 and 21 of theGeneral Clauses Act have been analysed by this Court in Sampat Prakash v. Stateof J & K (AIR 1970 SC 1118). It was inter alia held in para 11 as follows:

"11 - This provision is clearly a rule ofinterpretation which has been made applicable to the Constitution in the samemanner as it applied to any Central Act or Regulation. On the face of it, thesubmission that Section 21 cannot be applied to the interpretation of theConstitution will lead to anomalies which can only be avoided by holding thatthe rule laid down in this section is fully applicable to all provisions of theConstitution."

Section 432 (3) of Cr.P.C. reads as follows:

"If any condition on which a sentence hasbeen suspended or remitted is, in the opinion of the appropriate Government, notfulfilled, the appropriate Government may, cancel the suspension or remission,and thereupon the person in whose favour the sentence has been suspended orremitted may, if at large, be arrested by any police officer, without warrantand remanded to undergo the unexpired portion of the sentence."

The position in U.S.A. is summed up in Volume 67ACorpus Juris Secundum, p.21 para 16 as follows:

"There is authority for the view that apardon may be held void where it appears from the pardon that the pardoningpower was misinformed; but there is also authority for the view that intentionalfalsehood or suppression of truth is necessary, and that misinformation given ingood faith and in the belief in its truth is insufficient to avoid apardon.A pardon procured by false and fraudulent representations or byintentional suppression of the truth is void, even though the person pardonedhad no part in perpetrating the fraud."

Inevitable conclusion, therefore, is that if itcomes to the knowledge of the Government that the pardon has been obtained onthe basis of manifest mistake or patent misrepresentation or fraud, the same canbe rescinded or cancelled.

In R. v. Secretary of State for the HomeDepartment, ex parte Bentley (1993 (4) All E.R. 442) it was held:

"(1) The court had jurisdiction to reviewthe exercise of the royal prerogative of mercy by the Home Secretary in accordwith accepted public law principles since the exercise of the prerogative was animportant feature of the criminal justice system and a decision by the HomeSecretary which was infected with legal errors ought not to be immune from legalchallenge merely because it involved an element of policy or was made under theprerogative.

(2) The Home Secretary's decision not torecommend a posthumous pardon for the applicant's brother was flawed because, inconsidering whether to grant a posthumous pardon, he had failed to recognise thefact that the prerogative of mercy was capable of being exercised in manydifferent circumstances and over a wide range and had failed to consider theform of pardon which might be appropriate. Furthermore, there was no objectionin principle to the grant of a posthumous conditional pardon where a deathsentence had already been carried out, as the grant of such a pardon representedrecognition by the state that a mistake had been made and that a reprieve shouldhave been granted. Since the Home Secretary's failure to consider the grant of aposthumous conditional pardon when the previous Home Secretary's decision not togrant a reprieve had been clearly wrong amounted to an error of law, the court,while making no order on the application, would invite the Home Secretary toreconsider his decision.

At page 452 of the Reports it was held asfollows:

"The Court of Appeal (Cooke P, Gauk andMcKay JJ) dismissed the appeal but in doing so it said ([1992] 3 NZLR 672 at678, 681):

'The prerogative of mercy is a prerogative powerin the strictest sense of that term, for it is peculiar to the Crown and itsexercise directly affects the rights of persons. On the other hand it would beinconsistent with the contemporary approach to say that, merely because it is apure and strict prerogative power, its exercise or non- exercise must be immunefrom curial challenge. There is nothing heterodox in asserting, as counsel forthe appellant do, that the rule of law requires that challenge shall bepermitted in so far as issues arise of a kind with which the Courts arecompetent to deal ... In the end the issue must turn on weighing thecompeting considerations, a number of which we have stated. Probably it cannotbe said that any one answer is necessarily right; it is more a matter of a valueor conceptual judgment as to the place in the law and the effectiveness orotherwise of the prerogative of mercy at the present day. In attempting such ajudgment it must be right to exclude any lingering thought that the prerogativeof mercy is no more than an arbitrary monarchial right of grace and favour. Asdeveloped it has become an integral element in the criminal justice system, aconstitutional safeguard against mistakes.'

xx xx xx xx "Mr Pannick relies on thispassage. He argues that the prerogative of mercy is exercised by the HomeSecretary on behalf of us all. It is an important feature of our criminaljustice system. It would be surprising and regrettable in our developed state ofpublic law were the decision of the Home Secretary to be immune from legalchallenge irrespective of the gravity of the legal errors which infected such adecision. Many types of decisions made by the Home Secretary do involve anelement of policy (eg parole) but are subject to review.

We accept these arguments, The CCSU case made itclear that the powers of the court cannot be ousted merely by invoking the word'prerogative', The question is simply whether the nature and subject matter ofthe decision is amenable to the judicial process".

In "JUDICIAL REVIEW OF ADMINISTRATIVEACTION" (Fifth Edition) by the Retired Hon'ble the Lord Woolf it has beennoted as follows:

"Other former prerogative powers should notany more, however, automatically be assumed to be non-justiciable. It isnoticeable that one of the prerogative powers assumed by Lord Roskill in theGCHQ case to be non- justiciable, the prerogative of mercy, has since beenjudicially reviewed. In R. v. Secretary of State for the Home Department. ex pBentley, the applicant applied for review of the Home Secretary's decision notto pardon her brother who had been sentenced to death and hanged 39 yearsearlier. The applicant contended that the Home Secretary had erred in law in hisapproach to the issue in that he considered that the grant of free pardonrequired the finding that her brother was morally and technically innocent,where the right question to be asked was whether in all the circumstances thepunishment imposed should have been suffered. It was held that the decisionought to be based upon accepted public law principles and not be immune fromlegal challenge, despite the element of policy in the decision. The HomeSecretary's failure to consider the grant of a posthumous pardon when theprevious Home Secretary's decision had been wrong was held to be a clear errorof law. The court broke new ground in this case, guided only by a recentdecision of the New Zealand Court of Appeal".

In "THE CONSTITUTION OF UNITED STATES OFAMERICA" (Analysis and Interpretation) "Pardons and Reprieves"have been stated as follows:

"The Legal Nature of a Pardon

In the first case to be decided concerning thepardoning power, Chief Justice Marshall, speaking for the Court, said: "Asthis power had been exercised from time immemorial by the executive of thatnation whose language is our language, and to whose judicial institution oursbear a close resemblance; we adopt their principles respecting the operation andeffect of a pardon, and look into their books for the rules prescribing themanner in which it is to be used by the person who would avail himself of it. Apardon is an act of grace, proceeding from the power entrusted with theexecution of the laws, which exempts the individual, on whom it is bestowed,from the punishment the law inflicts for a crime he has committed. It is theprivate, though official act of the executive magistrate delivered to theindividual for whose benefit it is intended, and not communicated officially tothe Court.... A pardon is a deed, to the validity of which delivery isessential, and delivery is not complete without acceptance. It may then berejected by the person to whom it is tendered; and if it be rejected, we havediscovered no power in a court to force it on him." Marshall continued tohold that to be noticed judicially this deed must be pleaded, like any privateinstrument.

In the case of Burdick v. United States,Marshall's doctrine was put to a test that seems to have overtaxed it, perhapsfatally. Burdick, having declined to testify before a federal grand jury on theground that his testimony would tend to incriminate him was proffered byPresident Wilson "a full and unconditional pardon for all offenses againstthe United States," which he might have committed or participated inconnection with the matter he had been questioned about. Burdick, nevertheless,refused to accept the pardon and persisted in his contumacy with the unanimoussupport of the Supreme Court. "The grace of a pardon," remarkedJustice McKenna sententiously, "may be only a pretense ... involvingconsequences of even greater disgrace than those from which it purports torelieve. Circumstances may be made to bring innocence under the penalties of thelaw. If so brought, escape by confession of guilt implied in the acceptance of apardon may be rejected." Nor did the Court give any attention to thefact that the President had accompanied his proffer to Burdick with aproclamation, although a similar procedure had been held to bring PresidentJohnson's amnesties to the Court's notice. In 1927, however, in sustaining theright of the President to commute a sentence of death to one of lifeimprisonment, against the will of the prisoner, the Court abandoned this view."A pardon in our days," it said, "is not a private act of gracefrom an individual happening to possess power. It is a part of theconstitutional scheme. When granted it is the determination of the ultimateauthority that the public welfare will be better served by inflicting less thanwhat the judgment fixed." Whether these words sound the death knell of theacceptance doctrine is perhaps doubtful. They seem clearly to indicate that bysubstituting a commutation order for a deed of pardon, a President can alwayshave his way in such matters, provided that substituted penalty is authorised bylaw and does not in common understanding exceed the original penalty.

Coming to the factual position it is noticed thatthe various materials were placed before the Governor when the request for grantof pardon/remission was processed at various levels. The views of the Districtlevel officials were obtained. Since they formed the basis of impugned order, itis relevant to take note of some interesting features. The three District levelofficials were Superintendent of Police, the District Collector, Kunoor and theDistrict Probation Officer. Apart from that, the views of the Superintendent ofjail, Central Prison, Cherlapally were obtained. The Collector's report refersto the report given by the Superintendent of Police and reproduces the same inthe report contained in letter dated 9.12.2004. He also refers the letter dated8.12.2004 of the Revenue Divisional Officer who according to him had indicatedno objection to release of respondent No.2 on premature basis as his conduct andcharacter was good and he lead ordinary life during the period of his escortparole from 19.5.2004 to 7.8.2004 and the free parole from 20.10.2004 to6.11.2004. Only on that basis the District Collector recommended prematurerelease.

According to learned counsel for the State thiswas sufficient as the Collector had to act on some material and he acted on thereports of the Superintendent of Police and the Revenue Divisional officer. Theplea is clearly unacceptable. The Collector does not appear to have made anyindependent enquiry on his own. The report of District Probation officer is veryinteresting. In his report he has stated that if he (Respondent No.2) isprematurely released his life would be safe because his wife is a sitting MLAand she is having a police security. Further he was having a strong hold in thevillage and there is no opposition in Bramhanakotkur village. Following portionof his report shows as to how extraneous materials which had no relevance formedthe foundation of his report.

"The convict Gouru Venkata Reddy S/oJanardhan Reddy, Central Prison Cherlapalli belongs to Upper Caste Reddy'sfamily of Brahmanakotkur (Village) Nandikotkur Mandal and Taluk. The father ofthe convict was Janardhan Reddy and mother was Gouru Lakshmi Devi and duringenquiry it is revealed that both were dead. The grand mother of convict Smt.Ratnamma is old, aged and there is no male person in the house to look afterher. She desires that the convict should come and provide medical treatment toher.

In the past the convict contested in theelections and was defeated with small margin. During enquiry it is revealed thatthe convict is Congress Worker and due to political conspiracy he was defeated.In the elections conducted later on the wife of convict Smt. Saritha Reddycontested and was elected. During enquiry it is revealed that the mattersmentioned in the application of the wife of the convict are true. The convicthas two sisters. The deceased K. Rama Subbaiah and Ambi Reddy belong toNandikotkur village. In this murder case the convict is not involved but due topolitical reasons his name was implicated in the case by producing falsewitnesses and sent to the Jail. But later they realized their mistake and thefamily members of the deceased are maintaining cordial relations. During enquiryit is revealed that there is no danger to the life of the convict from thevillagers and also there is no danger to the villagers from the convict if theconvict is released as stated by the President of the village Shri ShaikZiauddin, Village Secretary Sri Sanjanna, village elders Shri Nagaswamy Reddy,Sri K. Venkata Rami Reddy, Shri Khajamoinuddin and Sri Pathan Moutali etc.

As seen from the past history of the convict heis not a naxalite, dacoit, and habitual offender. He was peacefully carrying outagricultural activities and a good Congress Worker. He used to provideemployment to a number of persons through agriculture. It is also revealed thatthe villagers are having good opinion on the convict. "

(underlined for emphasis)

Apart from apparently wrong statement made thatrespondent No.2 was maintaining cordial relationship with the family members ofthe deceased, he has highlighted that he was a "good Congress Worker".Further there is an inference that he was not involved in the murder was falselyimplicated and false witnesses were produced. This inference on the fact of thisCourt's judgment is utterly fallacious. The question of his being a "goodCongress Worker" has no relevance the objects sought to be achieved i.e.consideration of the question whether pardon/remission was to be granted.Equally surprising is the statement to the effect that during enquiry it wasrevealed that the convict is Congress worker and by political conspiracy he wasdefeated in the elections conducted earlier.

The report of the Superintendent of Police isequally interesting. He has stated that there will be no reaction in BrahmanaKotkur village and Nandikotkur town if the prisoner releases on prematurely. Thereport is dated 6.12.2004. Before the elections, the same officer had reportedthat on account of respondent No.2's release on parole, there was likelihood ofbreach of peace and law and order if he visits Nandikotkur AssemblyConstituency. The only reason why a pariah becomes a messiah appears to be thechange in the ruling pattern. With such pliable bureaucracy, there is need fordeeper scrutiny when power of pardon/remission is exercised.

It appears that in the petition filed byrespondent No.3 there is no mention about pendency of a Criminal case No. 411 of2000. Learned counsel for the respondent No.1-State submitted that though thisfact was not mentioned by the respondent No.3 in the petition yet the StateGovernment considered the effect of the pendency of that petition. Thiscertainly is a serious matter because a person who seeks exercise of highlydiscretionary power of a high constitutional authority, has to show bona fidesand must place materials with clean hands.

When the principles of law as noted above areconsidered in the factual background it is clear that the irrelevant andextraneous materials entered into the decision making process, thereby vitiatingit.

The order granting remission which is impugned inthe petition is clearly unsustainable and is set aside. However, it is open tothe respondent No.1 to treat the petition as a pending one for the purpose ofre-consideration. It shall be open to the Governor to take note of materialsplaced before him by the functionaries of the State, and also to make suchenquiries as considered necessary and relevant for the purpose of ascertainingthe relevant factors otherwise. The writ petitions are allowed to the extentindicated above. No costs.