Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

ACADEMIC SESSION:2021-2022

CONSTITUTION LAW-II

PRESIDENTIAL PARDON AND JUDICIAL REVIEW

Submitted to: Submitted by:

Dr. Atul Kumar Tiwari Saddhvi Nayak

Associate Professor (Law) 200101114

RMLNLU 4th semester (Section B)

B.A.L.L.B(Hons.)
 CONTENTS

S.NO. Topic Pg.NO.

1. Declaration 3

2. Acknowledgement 4

3. Index of authorities 5

4. Introduction 6

5. Pardon for what and by whom? 6-7

6. Position in the UK 7

7. Position in the USA 7-8

8. Indian Scenario 8-9

9. Pardoning power of the President 9-12

10. Pardoning power and Judicial Review 12-13

11. Conclusion 13

12. Bibliography 13
 DECLARATION

I hereby declare that the project work entitled “Presidential

Pardon and Judicial Review” submitted to the Dr. Ram
Manohar Lohiya National Law University, Lucknow is a record
of an original work done by me under the guidance of Dr. Atul
Kumar Tiwari, faculty of law, the Dr. Ram Manohar Lohiya
National Law University and this project is submitted in the
partial fulfillment of the requirements for the award of the
degree of B.A.L.L.B (Hons.). The results embodied in this have
not been submitted to any other University or Institute for the
award of any degree or diploma.
 ACKNOWLEDGEMENT

This research paper would not have been accomplished without the
generous contributions of individuals. First of all, I express my gratitude
to the Almighty, who aided me with his strength, wisdom and patience to
complete this project as a term paper.

Additionally, I express my gratitude and deep regards to my teacher Dr.

Atul Kumar Tiwari for giving me the freedom to work on “Presidential
Pardon and Judicial Review” and also for his exemplary guidance,
monitoring and constant encouragement throughout the course of this
research paper.

I would also like to thank the authorities of Dr. Madhu Limaye Library
who provided the remote access of the library to provide the research
material.

Moreover, I also thank all my batchmates and seniors who aided me

along the way, and my family and friends for their constant
encouragement without which this assignment would not have been
possible.

I know that despite my best effort some discrepancies might have crept
in which I believe my humble professor would forgive.

THANKING YOU ALL.

Saddhvi Nayak.
 INDEX OF AUTHORITIES
CASES

Bachan Singh v. State of Punjab 1980 (2) SCC 684.....................................................................11

Burdick v. United States 236 U.S. 79 (1915....................................................................................8
Epuru Sudhakar v. Government of Andhra Pradesh AIR 2006 SC 3385......................................13
Gupta v. Union of India AIR 1982 SC 149...................................................................................11
Kehar Singh v. Union of India (1989)1 SCC 204.........................................................................10
Kuljit Singh v. Lt. Governor of Delhi AIR 1982 SC 774..............................................................12
Marbury v. Madison 5 U.S. 137 (1803).........................................................................................12
Maru Ram v. Union of India (1981) 1 SCC 107...........................................................................10
Sarat Chandra Rabha v. Khagendra Nath AIR 1961 SC 334........................................................11
Shamsher Singh v. State of Punjab AIR 1974 SC 2182................................................................12
 INTRODUCTION

The Power of Pardon was historically vested in the British monarch. At common law, a pardon
was an act of mercy whereby the king “forgiveth any crime, offence, punishment, execution,
right, title, debt, or duty.” This power was absolute, unfettered and not subject to any judicial
scrutiny. From this source, it came to find a place in the Constitutions of India and the USA as
well as the Constitutional structure of Britain. However it could hardly survive in its unrestrained
nature in the democratic systems of these states.

Over a period of time, it became diluted in the U.K. and U.S.A. to a limited extent through the
exercise of judicial scrutiny. But its greatest dilution has occurred in India. The Supreme Court
has conclusively established in the landmark cases of Maru Ram and Kehar Singh that the power
of pardon is subject to judicial scrutiny. In subsequent cases, the Court enumerated specific
grounds on which such scrutiny could be exercised. However, the Court has wisely stopped short
on laying down any explicit guidelines for the exercise of this power. This article seeks to
analyze the Court’s jurisprudence with respect to the justiciability of the power of Presidential
Pardon after taking a look at British and American practice and to find out the current legal
position with respect to the same.

PARDON FOR WHAT AND BY WHOM?

Generally, the punishment dealt herewith is that of the capital punishment. When an act done by
a person is penalized by the capital punishment the question arises whether the mercy pleading
should be entertained, whether it is moral because generally such punishment in Indian
prospective is only given in rarest of the rare cases. The defense given behind is that while every
crime is an outrage that is deeply destructive of social and moral fabric, punishment can never
undo the harm that has been suffered by the victims and the community. Therefore mercy
pleading should be entertained and granted.
Thus now the question arises who can grant pardon in a welfare state. The answer for this
question could well be traced out from the definition of Crime which was given by Prof. Kenny.,
it reads that “Crimes are wrongs whose sanction is punitive and is in no way remissible by any
private person but is remissible by the crown alone, if remissible at all.”
The thing which should be kept in mind is that crown can grant pardon and such pardon should
be given for those acts which can be pardoned. In furtherance to it the Pardon shall only be given
in those cases where it is beneficiary to the society.

POSITION IN THE UK

In his Commentaries, Blackstone said that the Crown's use of the pardon power to ensure that
justice was administered with mercy was one of the great advantages of monarchy over any other
kind of government, because it softened the rigors of the general law.

At present, the monarch exercises the power on the advice of the departmental minister the
Home Secretary. The Home Secretary’s decision can in some situations be challenged by judicial
review. In R v Secretary of State for the Home Department ex parte Bentley,1the Court held that
the formulation of policy for the grant of a free pardon was not justiciable but a failure to
recognize that the prerogative of mercy was capable of being exercised in many different
circumstances and over a wide range was. Thus, all in all, it may be concluded that in the UK
judicial review of the power of pardon is extremely restricted in scope. However, the British
constitutional structure recognizes the supremacy of parliament and provides an altogether
narrower scope for judicial review than the Indian Constitution which tends towards separation
of powers. Thus, British precedent in this area has limited application to India.

POSITION IN THE USA

Article II of the US Constitution grants the President of the United States, the “Power to Grant
Reprieves and Pardons for offenses against the United States, except in cases of Impeachment.”
The Court has been cautious in its interpretation of the pardoning power where conditions have
been imposed in grant of pardons which conflicted with the constitutional rights of the persons

1
[1963] 1 QB 829,
who were pardoned. In Burdick v. United States,2 the Court upheld an offender's right to refuse a
presidential pardon granted in order to compel him to testify in a case which conflicted with his
right against self-incrimination. However apart from judicial scrutiny in this area the power of
pardon has been allowed to be exercised freely.The USA follows a Presidential System of
Government in which the executive is relatively insulated from the pressures of legislative party
politics and more stable in nature than the Indian Parliamentary system. The system thus
introduces a degree of responsibility in the use of the pardoning power which would not be
possible in India.

INDIAN SCENARIO

In the Constitution of India, the power of Presidential Pardon is found in Article 72. It empowers
the President to grant pardons, reprieves, respites or remissions of punishment in all cases where
the punishment is for an offense against any law to which the executive power of the union
extends.

ARTICLE 72 OF THE INDIAN CONSTITUTION

(1) 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 persons 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) shall after the power conferred by law on any
officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by
a Court Martial.

2
Burdick v. United States 236 U.S. 79 (1915)
 (3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend remit or
commute a sentence of death exercisable by the Governor of a State under any law for the
time being in force.

By the virtue of this article the president can grant pardon but the materialistic fact is that
whether such power is an absolute one because the word “Shall” in clause (1) of the Article
is ambiguous. Apart from it was also held that this power of pardon shall be exercised by the
President on the advice of Council of Ministers.

PARDONING POWER OF THE PRESIDENT

The power to grant pardon or to commute the sentence of any person convicted of any offence
which vests in the President, is not subject to any other provision of the Constitution. It is a
constituent powervested in the Head of the State and in its terms the power is absolute. Such
being the nature and content of the power exercisable by the President under Article 72 in matter
of tendering pardon or commuting a sentence cannot be equated with any other executive act
performed by the Government or a judicial act discharged by the Court. The President is not
required to record reasons for either directing the commutation of a sentence or refusing to do so.
It depends upon his will whether he wants to grant pardon or not, but this discretion should not
be exercised on any malafide ground or should not possess any kind of arbitrariness.

A pardon may be absolute or conditional. It may be exercised at any time either before legal
proceedings are taken or during their pendency or after conviction. The rejection of one
clemency petition does not exhaust the pardoning power of the President

The power of pardon under Article 72 was reviewed in the two landmark cases of Maru Ram v.
Union of India and Kehar Singh v. Union of India. In Maru Ram the Court while deciding upon
the validity of 433A of the Code of Criminal Procedure, examined the power of pardon under
Article 72.
In the case of Maru Ram v. Union of India,3the constitutionality of “Section 433 (A) of
Cr.P.C.”was challenged and one of the ground is that it violates Article 32 and 161 of the
Constitution. The impunged section provides that Section 432 of Cr.P.C. which allows the
appropriate government to amend the sentence of the prisoner cannot be used so as to reduce the
actual period of imprisonment of two classes of prisoners below 14 years.

The persons covered by Section 433 (A) are the persons who are sentenced:

 To undergo “Life Imprisonment” for offence which prescribes death sentence as an

alternative punishment.
 Persons who are sentenced and also the persons who had been sentenced to death
sentence but has been commuted to life imprisonment.

“The court ruled that Section 433 A of Cr.P.C. was constitutional and does not impair the power
of President under Article 72 of the Constitution.”

In the case of Kehar Singh v. Union of India,4 the manner of consideration of the mercy
petition, the Court said, was entirely within the discretion of the President. The Court need not
spell out specific guidelines for the exercise of power under Article 72. This was so because the
power under Article 72 was of widest amplitude and could contemplate myriad kinds and
categories of cases with facts and situations varying from case to case. The Court further said
that the President could not be asked to give reasons for his order.It has been consistently said
that the court’s power of judicial review of decision taken by the President under Article 72 is
very limited.The Court may interfere if it is found that the decision has been taken without
application of mind to the relevant factors or that the same is founded on the extraneous or
irrelevant considerations or is vitiated due to malafide or patent arbitrariness. The power of
pardoning of the President under Article 72 of the Constitution of India is an absolute power.
The power has a very wide scope and applicability. The Court cannot simply interfere into the
power exercised by the President under Article 72 unless it is found that the considerations made
by the President while exercising the power to grant pardon is irrelevant or is exercised on the
basis of malafide grounds or contains arbitrariness. In the absence of violation of any
3
Maru Ram v. Union of India (1981) 1 SCC 107
4
Kehar Singh v. Union of India (1989)1 SCC 204
constitutional limitation circumscribing such power, the Court will not interfere with a purely
executive power which the President has to exercise on the advice of his Council of
Ministers.5The expression "executive power" is not defined in the Constitution. But the
constitution being a written one, the powers of the different organs of the Government, including
the Executive must be spelt out from the Constitution itself.6

Former Chief Justice of India P.N. Bhagawati, in the case Bachan Singh v. State of Punjab,7
was of the view that the President enjoys absolute powers under Article 72. An order passed
under Article 72 of the Constitution is justiciable on any of the following grounds –

1. That the authority which purported to have exercised the power had no jurisdiction to
exercise the same.
2. That the impugned order goes beyond the extent of the power conferred by provisions of law
under which it is purported to be exercised.
3. That the order has been obtained on the ground of fraud or that the same having been passed
considering extraneous considerations not germane to the exercise of the power conferred or,
in other words that the order is a result of mala fide exercise of power.8 The above case
basically talks about the factors or grounds which justifies an order passed by the President
under Article 72 of the Constitution of India. The first ground talks about the fact that the
authority which was intended to be exercising the power had no jurisdiction to exercise the
same. The second ground says that the order passed by the authority has gone beyond the
extent of the power provided by any other law. The third ground lays down that the order
passed by the authority has been passed fraudulently or is a malafide exercise of power.

In the case of Sarat Chandra Rabha v. Khagendra Nath,9 the question was whether the period
of clemency could be treated as equivalent to reduction of sentence by the court of law.

In this case the appealant was convicted under Explosive Substance act and had to go
imprisonment for a period of 3 years. The Government of Assam remitted his sentence and the
actual period of which he was in jail was reduced to 2 years. The Supreme Court held that in the

5
Gupta v. Union of India AIR 1982 SC 149
6
AIR 1951 All 257 (309)
7
Bachan Singh v. State of Punjab1980 (2) SCC 684
8
AIR 1975 Punj 148 (154)
9
Sarat Chandra Rabha v. Khagendra Nath AIR 1961 SC 334
eyes of law his sentence was of 3 years and therefore he was disqualified for contesting the
election and that his nomination paper was rightly rejected.

PARDONING POWER AND JUDICIAL REVIEW

Judicial review is the power of the courts of a country to scrutinize the actions of the legislative,
executive, and administrative arms of the government and to find out whether such actions are
constant with the constitution. Activities judged inconsistent are stated unconstitutional and,
therefore, null and void.

The U.S. Supreme Court established the principle of Judicial Review in the case of Marbury v.
Madison.10

In the case of Maru Ram v. Union of India,11 it was observed that it is the duty of the Court to
interfere if it is found that such decision has been taken without application of mind to the
relevant factors or that the same is founded on the extraneous or irrelevant considerations or is
vitiated due to malafide or patent arbitrariness.

The Supreme Court in the case of Kuljit Singh v. Lt. Governor of Delhi,12 said that the power
conferred under Article 72 of Constitution of India should be exercised fairly and reasonably. In
Shamsher Singh v. State of Punjab,13 the Supreme Court held that the President is only a
“constitutional or formal head.” He exercises his powers and functions under the Constitution
only with the aid and on the advice of the Council of Ministers. Wherever the Constitution
requires the satisfaction of the President, the satisfaction is not the personal satisfaction of the
President, but the satisfaction is the satisfaction of the Council of Ministers. Thus, there is a
scope of Judicial Review as pointed out by the Honourable Supreme Court in the case of Maru
Ram v. Union of India, which was further upheld in the case of Epuru Sudhakar v.
Government of Andhra Pradesh.14 The power under Article 72 entitles the President to examine

10
Marbury v. Madison 5 U.S. 137 (1803)
11
Supra. 3
12
Kuljit Singh v. Lt. Governor of Delhi AIR 1982 SC 774
13
Shamsher Singh v. State of Punjab AIR 1974 SC 2182
14
Epuru Sudhakar v. Government of Andhra Pradesh AIR 2006 SC 3385
the record of evidence of the criminal case and to determine for himself whether the case is one
deserving the grant of relief falling within that power. The said authority, viz., the President is
entitled to go into the merits of the case notwithstanding that it has been judicially concluded by
the consideration given to it by any Court including the Supreme Court. While exercising the
pardoning power given under Article 72 of the Constitution of India, the President has been also
given the power to examine the evidence of the criminal case and to decide for himself whether
there is any scope of granting pardon to the convict. Therefore, the President can scrutinize or
has the power to scrutinize the merits of the case in question.

CONCLUSION

The power of pardon has thus conclusively been made subject to judicial review. The biggest
question which could be laid down against the conception of Judicial Review of the power is
that, a person pleads for mercy when all the doors of judiciary closes for him, in that case if
President grants pardon on some moral and humanitarian ground whether in that case if judicial
review is done then how come a judiciary would close his eyes from the previous judgments
which it has given right from the lower courts against the pleader. It is more or less clear that it
would revoke the pardon and revert back to it’s final decision. As per my view the Judiciary
when given a chance to review a pardon should not go by the legal circumstances but it should
deal with the moral values.

BIBLIOGRAPHY
 Jain M.P., Constitutional Law of India, Lexis Nexis, 2018
 J.N. Pandey, Constitutional Law of India
 Bare Act
 SCC ONLINE for Case Laws
 Online Articles