TC 07

PEOPLE’S FRONT FOR DEMOCRATIC RIGHTS V.
UNION OF INDUSLAND
TC-07
SARDAR PATEL SUBHARTI INSTITUTE OF LAW
(MOOT COURT EXERCISE II), 2023
BEFORE THE FEDERAL COURT OF INDUSLAND
WRIT PETITION UNDER ARTICLE 32 OF CONSTITUTION OF

INDUSLAND, 1950
In the matter of
People’s Front for Democratic Rights

(Petitioners)
V.
Union of Indusland
(Respondents)
ORIGINAL WRIT JURISDICTION
PUBLIC INTEREST LITIGATION

DRAWN AND FILED BY THE COUNSEL APPEARING ON THE BEHALF OF
RESPONDENT
Memorandum on the behalf of Respondent Page 1

PEOPLE’S FRONT FOR DEMOCRATIC RIGHTS V. UNION OF INDUSLAND
TABLE OF CONTENTS
 LIST OF ABBREVIATIONS………………………………………………...…...3
 INDEX OF AUTHORITIES………………………………………………………4
 STATEMENT OF JURISDICTION……………………………………………....5
 STATEMENT OF FACTS... …………………………………………………......6
 ISSUES RAISED …………………………………..……….…………….............7
 SUMMARY OF ARGUMENTS ……………………………………………........8
ARGUMENTS ADVANCED 9-15
ISSUE1. WHETHER THE EXECUTIVE POWER EXERCISED BY THE

PRESIDENT IN GRANTING PARDON TO MR. SUNDAR DAS IS AS PER THE
SPIRIT OF THE CONSTITUTION? 9-12
ISSUE2. WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

PARDON BY FEDERAL COURT IN THE PRESENT CASE VIOLATES THE
DOCTRINE OF SEPARATION OF POWERS? 13-15
PRAYER 16
LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS
AIR All India Reporter
All. Allahabad High Court
Anr. Another
An Andhra Pradesh
Bom Bombay
Cal Calcutta High Court
SMA Special Marriage Act
LGBTQI Lesbian, Gay, Bisexual, Transgender, Queer
and Inter sex
Cir. Circular
EC European Cases
Ed. Edition
EU European Union
i.e. That is
ILR International Law Reports
J&K Jammu & Kashmir
Mad Madras High Court
Nag Nagpur
No. Number
Ors. Others
Pat Patna High Court
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec./S. Section
v. Versus
WB West Bengal
www. World Wide Web
§ Section
& And
INDEX OF AUTHORITIES

LIST OF STATUES:
 Constitution of India, 1950.
 Indian Penal Code, 1860.
 Unlawful Activities Prevention (Amendment) Act, 2019.
LIST OF BOOKS
 Ratanlal & Dhirajlal, The law of evidence, 27th Edition (2020).
 D. J. De, Constitution of India, 2nd Edition.
 Durga Das Basu, Commentary on the- Constitution of India, 8th Edition (2008).
 P. K. Majumdar & R. P. Kataria, Commentary on the- Constitution of India, 11th
Edition.
 Rattanlai & Dhirajlaal, The Indian Penal Code 1860, 32nd Enlarged Edition (2013).
 Kumud Desai, Indian law of Marriage and Divorce, 10th Edition (2017).
LIST OF DICTIONARY
 Black, H.C., Black`s Law Dictionary, 7th Edition (1999)
 Oxford, Advance Learner`s Dictionary, 6th Edition. 2006
JOURNALS REFFERED
 ALL INDIA REPORTER
 CRIMINAL LAW JOURNAL
 LAW REPORTER
 SUPREMECOURT CASES
INTERNET SOURCES
 www.scconline.com
 www.barandbech.com
 www.livelaw.com
 www.indiakanoon.com
 www.casemine.com
STATEMENT OF JURISDICTION

This Honorable Federal Court of Indusland has the jurisdiction to try, adjudicate and entertain
this matter under Art.321 of Constitution of India, 1950.
STATEMENT OF FACTS
1
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
Conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
Enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

1. That, the present case is an outcome of Public Interest Litigation (PIL) filed in Federal
Court of Indusland by an NGO named People’s Front for Democratic Rights (PFDR),
challenging the grant of pardon to Mr. Sunder Das by the President of Indus land.
2. That, PFDR is an NGO with a mandate of creating awareness amongst the citizens
about democratic rights. It has also filed many Public Interest Litigations in the
constitutional courts of the country for the protection of the democratic and civil
rights of the people.
3. That, Mr. Sunder Das was a businessman and Former Member of the Legislative
Assembly of Southland. He was convicted by the Sessions Court for the murder of
Rajat Singh and his family comprising of his wife and two teenage daughters.
4. That, the reason behind the murder was the alleged political rivalry between Mr.
Sunder Das and Mr. Rajat Singh. Mr. Singh was the leader of a local unit of labour
union. Both had differences of opinion on some political issues which were alleged to
be the reason of murder. Mr. Sunder Das was convicted by the sessions court with
death penalty.
5. That, against this decision, appeal was filed to the High Court of Southland and
further Special Leave Petition (SLP) in Federal Court, both were unsuccessful.
However, the President granted the pardon to Mr. Sunder Das on the ground that his
post-conviction report by Jail Authorities affirmed his good behaviour in jail.
6. That in a sting operation, the spokesperson of the President’s office revealed that
Minister for Sports had a keen interest in getting the pardon sanctioned for Mr. Das.
that the President was reluctant to grant pardon but succumbed to advice of Council of
Ministers, that instead of the merit, the pardon was granted due to political affiliation
7. That, finally the matter is put before the Federal Court for consideration.
ISSUE RAISED


SPIRIT OF THE CONSTITUTION?

DOCTRINE OF SEPARATION OF POWERS?
SUMMARY OF ARGUMENTS


The respondent most humbly submits to the federal court of Indusland that the executive
power exercised by the president in granting pardon to Mr. Sundar Das is as per the spirit of
the constitution. During the British reign, the power of pardon was vested in the British
monarch. This power was absolute, unrestrained and not subject to any judicial scrutiny. It
was considered as an act of mercy at the hands of the King to forgive any crime, offence,
punishment, execution, right, or duty. Consequently, the constitutional framers have stated
the position of the President in the Constitution as symbolic and the Central Government is
the reality.

The respondent humbly submits before this court that the judicial review of presidential
power by federal court in the present case does violate the doctrine of separation of powers.
The President while exercising the power under Article 72 can go into the merits of the case
notwithstanding that it has been judicially concluded by the consideration given to it by the
Supreme Court. The power under Article 72 entitles the President to examine the record of
evidence of the criminal case and to determine for himself whether the case is one deserving
the grant of the relied falling within that power. He can, on scrutiny of the evidence on record
in the criminal case, come to a conclusion different from that recorded by the Court in regard
to the guilt of, and sentence impose on, the accused. In doing so, the President does not
amend or modify or supersede the judicial record. The judicial record remains intact, and
undisturbed. Therefore, there is no interference with the functions of the judiciary.
ARGUMENTS ADVANCED


1.1 The respondent most humbly submits to the federal court of Indusland that the executive
power exercised by the president in granting pardon to Mr. Sundar Das is as per the spirit of
the constitution. During the British reign, the power of pardon was vested in the British
monarch. This power was absolute, unrestrained and not subject to any judicial scrutiny. It
was considered as an act of mercy at the hands of the King to forgive any crime, offence,
punishment, execution, right, or duty. Consequently, the constitutional framers have stated
the position of the President in the Constitution as symbolic and the Central Government is
the reality.
1.2. Addressing as the legendary American jurist, Oliver Wendel Holmes, pointed out, in a
modern democracy, the power to punish with death rests with the judiciary and the power to
spare life with the executive. "It is for the judiciary to find a person guilty or not and their job
ends there," says former chief justice of India, J.S. Verma. "Mercy is entirely an executive
process, for the President to decide. The judiciary should stay out of it."
I.1. Fundamentals of Clemency Power
I.1.1. The Clemency power cannot be understood properly without getting the meaning of the
Clemency and other related terms. According to Merriam Webster Dictionary, the term
‘clemency’ means having moderate nature especially to the severity of punishment which is
due.2 The dictionary definition of ‘pardon’ is, it is an act of grace, proceeding from the
power conferred with the execution of the laws, which exempts the individual on whom it is
bestowed from the punishment the law inflicts for a crime he has committed. 3 ‘Reprieve’
means temporary suspension of the punishment fixed by law. 4 ‘Respite’ is postponement to
the future the execution of a sentence.5 ‘Commutation’ is changing the punishment from what
2
Merriam Webster, available at: https://www.merriam-webster.com/dictionary/clemency (last visited April 14,
2023).
3
Black’sLaw Dictionary, available at:http://heimatundrecht.de/sites/default/files/dokumente/Black
%27sLaw4th.pdf (last visited April 14, 2023).
4
Mahendra Pal Singh, V.N. Shukla’s Constitution of India, 416 (EBC, Lucknow, 2019).
5
Ibid.

was originally proposed and ‘remission’ is reducing the amount of punishment without
changing the character or nature of the punishment.
I.1.2. However, Mercy jurisprudence is a part of an evolving standard of decency, which is the
hallmark of the society.6 The President may grant pardons, reprieves, respites or remissions of
punishment or suspend, remit or commute the sentence of any person convicted of any offence. 7 The
power of clemency or pardon can be invoked in three situations; first, in cases where
punishment and sentence are by a court-martial; secondly, in cases where the punishment or
sentence is for an offence where parliament bestow jurisdiction to make law; and, thirdly, in
all the cases of a death sentence.8
I.1.3. The act of giving pardon is not a private ‘act of grace’. The power to grant is
constitutionally reposed in the head of the State and, therefore, constitutes a solemn
constitutional responsibility.9 The Power of pardon continues to exist in the constitutional and
democratic setup to prevent the injustice in the society which is caused due to draconian law
or due to miscarriage in process of justice; consequently, the necessity vesting such power in
an authority other than the judiciary has always been recognized”.10
I.2. Pardon: A Historical Practice
I.2.1 The respondent has acted in accordance to constitution reiterating that it is out of duty
not obligation. It has done nothing but exercise its law of the land. The clemency power of
the executive has a unique nature which changes with time. In the traditional view it was a
sovereign power in the hand of her majesty; from the political point of view it is a residuary
power and from humanitarian approach, it is a path to ensure justice and mercy. The
Constitution of India envisaged the clemency power of executive under Article 72 and Article
161.
I.2.2. Additionally, It is a common truism that everything which is in existence today owes its
roots from the past and the pardon power is no exception here. The pardoning power owes its
genesis from Ancient Athens society, where a practice called adeia was prevalent, where if a person
6
Shatrughan Chauhan & Anr. v. Union of India. & Ors.,(2014) 3 SCC 1.
7
The Constitution of India, art. 72.
8
Shubhankar Dam, “Executive”, in Sujit Choudhry , Madhav Khosla Pratap Bhanu Mehta, The Oxford
Handbook of the Indian Constitution 494 (OUP, 2016).
9
Ibid.
10
J.P. RAI, “Exercise of Pardoning Power in India: Emerging Challenges”, XII The NEHU Journal 1 (2014).

wants immunity from the punishment then he requires 6000 votes of the citizen. 11 The concept of
pardon was present in the Romans society also, it was different from Athens. The Romans
used the power of pardon as modus operandi to control the masses by killing a handful.
Romans chose to execute every tenth army troops of transgressors and by doing this they
generated fear and discipline in the remaining ones. 12 This practice saved the troops and also
upheld strategically motivated clemency.
I.2.3. Furthermore, The stand of India in the context of pardon was different from Romans
and Athens. In India, the king was considered as ‘the fountainhead of justice’ and the life of a
person was totally in the hand of the king, he may punish him or he may pardon him but
some sections of society were not given death punishment like the Brahmin offender and old
man and child below 5 years.13 The above paragraph shows that in India, the pardon power
was used scrupulously by the King and also the king does not act on his own conscious
because it may bring injustice in the society. 14 At the time of British rule, the Power of
Pardon was vested in the British monarch. In common law system, the act of giving pardon is
an act of mercy in which the king forgives any crime committed by the accused. 15 So, it can
be said that the practice of giving pardon to the people is not a naive concept and its root can
be easily traced from an ancient society.
I.3.4. This principle was laid down in the case of In Re: Maddela Yerra Channugadu and
Ors16; it was said in the case, “The pardon power includes not only that of granting absolute
and unconditional pardons, but also that of commuting a punishment to one of a different sort
than that originally imposed upon a person. It may be exercised at any time after the
commission of an offence, either before legal proceedings are begun or during their
pendency, and either before or after conviction.” This decision was affirmed later in the cases
of K.M. Nanavati v. State of Bombay17 and Ramdeo Chauhan v. State of Assam.18
11
Robert Nida, Rebecca L. Spiro “The President as His Own Judge and Jury: A Legal Analysis of the
Presidential Self-Pardon Power” 52 Oklahoma Law Review 197 (1999).
12
Ibid.
13
Shodhganga, availableat: https://shodhganga.inflibnet.ac.in/bitstream/10603/201569/8/08_chapter%202.pdf (l
ast visited April14, 2023).
14
Ibid.
15
J.P. RAI, “Exercise of Pardoning Power in India: Emerging Challenges”, XII The NEHU Journal 1 (2014).
16
MANU/TN/0394/1954.
17
AIR 1981 SC 112.
18
(2001) 5 SCC 714.

I.3. In Sprit of Constitution
I.3.1. These critiques express two main concerns: first, that the executive power is arbitrary to
the constitution; and second, that both Pardon is not justifiable. This power is exercised by
the President under the provisions and guidelines given in the Indian Constitution. It enjoys
high status under the Constitution. The power of pardon is granted by the judicial authority
with the belief that it will serve better for the public welfare and for the greater public good
by inflicting lesser punishment than what was actually fixed in the judgment given by the
court. The exercise of the power granted in Article 72 depends or varies as per the facts and
circumstances of each of the cases.
I.3.2. A In an opinion, remarkable for its erudition and clarity, Mr. Justice Holmes, speaking
for the court in w.i. Biddle v. Vuco Perovich (71 l ed 1161) enunciated this view, and it has
since been affirmed in other decisions. The power to pardon is a part of the constitutional
scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian
republic. It has been reposed by the people through the constitution in the head of the state
and enjoys high status. It is a constitutional responsibility of great significance, to be
exercised when occasion arises in accordance with the discretion contemplated by the
context. It is not denied that the power to pardon rests on the advice tendered by the executive
to the president, who subject to the provisions of article 74(1) of the Constitution, must act
in accordance with such advice.19
I.3.3. A similar question came up before the Court in the case of Madhav Shankar
Sonawane v. State of Maharashtra,20 here the issue was that whether Section 307 of
the Indian Penal Code, read with Section 34 of the Indian Penal Code, which has a
sentence of minimum of 25 years after conviction, places a limitation on the exercise of
power under Art.72. The Bombay High Court in the above case held that it is not allowed to
the Courts to hold that a convict shall have to undergo a minimum period of the sentence
even with an exercise of constitutional jurisdiction by high constitutional functionaries
under Article 72 and 161. After looking at all these cases, it can be concluded that in no
situation can any legislation place a limitation on the power under Art. 72 and Art. 161
19
Shatrughan Chauhan vs Union of India, [Writ Petition (Criminal) No. 55 of 2013]
20
AIR 1989 SC 653.


2.1. The respondent humbly submits before this court that the judicial review of presidential
power by federal court in the present case does violate the doctrine of separation of powers.
The President while exercising the power under Article 72 can go into the merits of the case
notwithstanding that it has been judicially concluded by the consideration given to it by the
Supreme Court. The power under Article 72 entitles the President to examine the record of
evidence of the criminal case and to determine for himself whether the case is one deserving
the grant of the relied falling within that power. He can, on scrutiny of the evidence on record
in the criminal case, come to a conclusion different from that recorded by the Court in regard
to the guilt of, and sentence impose on, the accused. In doing so, the President does not
amend or modify or supersede the judicial record. The judicial record remains intact, and
undisturbed. Therefore, there is no interference with the functions of the judiciary.
2.2. Supreme Court in Maru Ram v. Union of India,21 said that “the power of pardon,
commutation and release under Art. 72 and Art. 161, shall never be exercisable arbitrarily or
mala fide and, ordinarily, guidelines for fair and equal executions are guarantors of the valid
play power.” In Kehar Singh v. Union of India,22 it was said that the order of the President
cannot be subjected to judicial review on its merits. Looking at these cases, the Court did not
actually call for judicial intervention.
II.1. No Judicial Intervention
II.1.1. It is humbly submitted that 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 courts, power to improve or avoid
particular criminal judgments. It is only a check entrusted to the Executive for special cases.
It is clear that the powers vested in the President of India under Art. 72; in the Governor
under Article 161 of the Constitution and in the State Government under S. 401 of the Cr.P.C.
are essentially executive powers of mercy which operate in completely different fields.
21
AIR 1980 SC 2147.
22
(1998) 4 SCC 75.

II.1.2. The trial of criminals and the passing of sentences are purely in the domain of the
judiciary whereas the execution of sentences is purely with the Executive Government. Thus,
it is clear that the orders under Article 72 are essentially and basically executive orders in a
completely different field.23 The Head of the Executive exercises his powers of mercy under
the Constitution commonly known as ‘mercy jurisdiction’. Since no such powers are vested
with any judicial organ; there can be no infringement upon its functions.24
II.1.3. Furthermore, in another case the Governor decided to grant pardon to 66 life convicts
and there was a petition under Article 226 by 10 other convicts claiming that their cases
satisfied the criteria relied upon by the Governor in granting concession, it was held that it is
for the Governor, on the suggestions of concerned authorities, to deal with remissions of
punishment or to commute the sentence. It was held that the High Court cannot appropriate
the power of the Governor in a petition under Article 226 of the Constitution and grant
pardon to the petitioners.25 It is clear from the above case that the Court cannot usurp powers
to grant pardon itself based on the criterion followed by the President and can in no
circumstance reverse the decision of the President. Therefore we can conclude that the Courts
can exercise judicial review over the exercise of pardon in a very limited sense to correct an
unfair or arbitrary decision.
II.1.3. Moreover, In United States v. Klein,26 it was held that: Constitution has given
separate powers to all the three branches of government, and if legislature makes a statute
which limits the power of the executive to pardon a person from an offense committed by
him, then it such a case it is infringing upon the power of the executive by the legislature, and
thus it would be unconstitutional. Therefore it means that there can be no legislative control
over the pardoning power of the executive.
II.2. Doctrine of Separation of Power
II.2.1. It is humbly submitted that It is constitutionally wrong to suspect the use of pardoning
power by the executive head of the country and the court needs to presume that public power
is not irresponsibly used by the Supreme Constitutional Office. Grant of pardon is an act of
23
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.
24
Vinay Sharma v. Union Of India, WRIT PETITION (CRL.) NO.65 OF 2020.
25
Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161.
26
80 U.S. (13 Wall.) 128, 147 (1871).

grace dependent on the pleasure of the executive like in the United Kingdom, where the
pleasure of the crown plays a decisive role. Pardoning power is basically the absolute
discretion of the executive and no judicial review is possible in these cases.
II.2.2. However, according to the Doctrine of Separation of Powers, these three departments
of the Government must be in a free democracy, always be kept separate by three separate
department of the Government. The functions of the legislature is to make laws while the
function of the executive is to execute and that of the judiciary is to enforce and interpret
them. None of these three departments should interfere with exercise of the function of the
other departments. As Indusland has a democratic constitution, it adopted the theory of
separation of powers. This theory stipulates that the three organs of government, namely the
legislature, executive, and judiciary, should always function independently. Implementing
this theory avoids arbitrariness and the concentration of powers in one or a few members of
any organ of government. Hence, three organs possess their respective powers, such as the
legislature, which exercises legislative powers, the executive, which exercises executive
powers, and the judiciary, which exercises judicial powers. However, the President, who is
the head of state, is vested with both executive and judicial powers along with legislative
powers.

PRAYER
Therefore, if it may please this Hon`ble Court in the lights of Facts Presented, Issues Raised,
Arguments Advanced, and Authorities Citied, the Counsel for Petitioner humbly prays before
this Hon`ble Court, to kindly adjudge and declare:
1) That the executive power exercised by the president in granting pardon to Mr. Sundar Das
is as per the spirit of the constitution.
2) That the judicial review of presidential power of pardon by federal court in the present
case violates the doctrine of separation of powers.
And/or pass any other appropriate order as Court may deem fit and for this act of Kindness,
the Petitioner as in duty bound, shall forever pray.
Sd/
……………………….
Respectfully Submitted
Counsel of Respondent

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PEOPLE’S FRONT FOR DEMOCRATIC RIGHTS V.

BEFORE THE FEDERAL COURT OF INDUSLAND

WRIT PETITION UNDER ARTICLE 32 OF CONSTITUTION OF

People’s Front for Democratic Rights

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

Memorandum on the behalf of Respondent Page 1

ARGUMENTS ADVANCED 9-15

ISSUE1. WHETHER THE EXECUTIVE POWER EXERCISED BY THE

ISSUE2. WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

Memorandum on the behalf of Respondent Page 2

Memorandum on the behalf of Respondent Page 3

Memorandum on the behalf of Respondent Page 4

Memorandum on the behalf of Respondent Page 5

Memorandum on the behalf of Respondent Page 6

ISSUE1. WHETHER THE EXECUTIVE POWER EXERCISED BY THE

ISSUE2. WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

Memorandum on the behalf of Respondent Page 7

ISSUE1. WHETHER THE EXECUTIVE POWER EXERCISED BY THE

ISSUE2. WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

Memorandum on the behalf of Respondent Page 8

ISSUE1. WHETHER THE EXECUTIVE POWER EXERCISED BY THE

I.1. Fundamentals of Clemency Power

Memorandum on the behalf of Respondent Page 9

I.2. Pardon: A Historical Practice

Memorandum on the behalf of Respondent Page 10

Memorandum on the behalf of Respondent Page 11

I.3. In Sprit of Constitution

Memorandum on the behalf of Respondent Page 12

ISSUE2. WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

II.1. No Judicial Intervention

Memorandum on the behalf of Respondent Page 13

II.2. Doctrine of Separation of Power

Memorandum on the behalf of Respondent Page 14

Memorandum on the behalf of Respondent Page 15

Memorandum on the behalf of Respondent Page 16

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