THE PARDONING POWER OF THE PRESIDENT

OF INDIA

A Final research proposal submitted in partial fulfilment of the course

Constitutional Law II, Semester — VI during the Academic Year
2018 — 19.

Submitted by
Aditya Saurav, 1506
BA.LLB
Submitted to: -
Dr. Anirudh Prasad

August, 2018

Chanakya National Law University

Nyaya Nagar, Mithapur
800001, Patna

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 DECLARATION PAGE

I, Aditya Saurav, student of B.A., LL.B. (Third year) in Chanakya National Law University
declare that the research project entitled-‘Pardoning power of president of India’ submitted by
me for the fulfilment of ―Constitutional Law II course is my own work. This project has not
been submitted for any other Degree / Certificate / Course in any Institution / University.

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 ACKNOWLEDGEMENT

I am feeling highly elated to work on under the guidance of my Constitutional Law faculty. I
am very grateful to him for the exemplary guidance. His assignment of such a relevant topic
made me work towards knowing the subject with a great interest and enthusiasm.
I would like to enlighten my readers through this topic and I hope I have tried my best to bring
more luminosity to this topic. I am overwhelmed in all humbleness and gratefulness to
acknowledge from the bottom of my heart to all those who have helped me to put these ideas,
well above the level of simplicity and into something concrete effectively and moreover on
time.
I also want to thank all my friends; without whose cooperation this project was not possible.
Apart from all these, I want to give special thanks to the librarian of my university who made
every relevant material regarding to my topic available to me at the time of my busy research
work and gave me assistance.
I owe the present accomplishment of my project to my friends, who helped me immensely with
sources of research materials throughout the project and without whom I couldn’t have
completed it in the present way. I would also like to thank the library staff for working long
hours to facilitate us with required materials going a long way in quenching our thirst for
education. I would also like to extend my gratitude to my parents and all those unseen hands
who helped me out at every stage of my project.

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Table of Contents
DECLARATION PAGE................................................................................................................................ 2
ACKNOWLEDGEMENT ............................................................................................................................. 3
INTRODUCTION ....................................................................................................................................... 5
PROVISIONS IN THE CONSTITUTION ......................................................................................... 6
Objective of the Study ........................................................................................................................ 8
Hypothesis .......................................................................................................................................... 8
Research Methodology ....................................................................................................................... 8
Source of data ..................................................................................................................................... 8
ORIGIN & HISTORY ................................................................................................................................ 10
CONTEMPORARY PRACTICE .................................................................................................................. 15
SCOPE OF JUDICIAL REVIEW..................................................................................................... 17
IMPORTANT CASES & OPINION OF JUDGES.......................................................................................... 20
CONCLUSION......................................................................................................................................... 25
BIBLIOGRAPHY ...................................................................................................................................... 26
BOOKS REFERRED........................................................................................................................ 26
WEBSITES ....................................................................................................................................... 26
CASES .............................................................................................................................................. 26

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 INTRODUCTION
“A Pardon is an act of grace, proceeding from the power entrusted with the execution of laws,
which exempts the individual on whom it is bestowed from the punishment the law inflicts for
a crime he has committed”1

Hobbes has rightly stated that “Man‟s life in the state of nature has been selfish, nasty, brutish,
solitary, poor and short”. From this very statement human nature is evident that in the absence
of any restrictions men are prone to commit crimes. So the state was brought into being by
social contract, various leaders were created who made laws in order to maintain order in the
society. In order to guarantee a proper and peaceful life, the leaders made retributive laws and
gave retributive justice. All crimes committed were assigned corresponding punishment with
the hope that it would set as a detriment for future criminals and that they would give their
wrongful actions a second thought before committing them. The degree of retribution or
punishment varied according to the gravity of the crime. Some crimes were let off with a fine
while others were dealt with mild to strong sentences some extending to lifetime. The gravest
punishment for the gravest offence was death sentence or capital punishment. Such
punishments given were full and final. With passage of time it was realized that some cases of
harsh punishments needed a second consideration before its implementation as human
judgement was not infallible and free from personal prejudice which could be realized by
further revision. It would be apt to quote the following :

“I cannot accept your canon that we are to judge Pope and King unlike other men, with a
favourable presumption that they do no wrong. If there is any presumption it is the other way,
against the holders of power, increasing as the power increases”.2

Thus the concept of pardon came into being and it has been in existence for ages till the present.
Power of Pardon has yielded positive results in the form of man‟s belief in the nobility of the
society and its laws. It has also yielded negative results as many criminals have not atoned
themselves even after they have been pardoned and have continued to be a menace to the
society. This has lead to debate of necessity of pardoning power. On the other hand, various
issues and contemporary debates have dealt with the validity of retributive laws especially the

1
Burdwick v. United States, 236 US 79; 59 L.ed.476 at 480
2
Lord Acton(Quoted by Justice V.R.Krishna Iyer in Maru Ram v. Union of India)

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magnitude of those awarding harsh punishments. Thus in the present scenario it has become
an utmost need.

The Constitution makers kept the following facts in their mind and instituted three wings of
powers i.e. Legislature, Judiciary and Executive. Legislature made laws many of them being
retributive in nature, the Judiciary interpreted the laws and applied them to punish criminals
and the Executive gave the finishing touch by checking the punishment (judgement) for flaws,
modifying if necessary and then applying it according to the merits of the case. H.M.Seervai
had aptly written:

“Judges must enforce the laws, whatever they be, and decide according to the best of their
Lights; but the laws are not always just and the lights are not always luminous. Nor, again
are Judicial methods always adequate to secure Justice. The Power of pardon exists to
prevent injustice whether from harsh, unjust laws or from judgments which result in
injustice; hence the necessity of vesting that power in an authority other than the judiciary
has always been recognized.”3

But with the course of time, the sanctity of power of pardon had been lost and it became
impure. Gradually various discrepancies have crept in and the old phrase “Power corrupts and
absolute power corrupts absolutely” became applicable here also. Though the condition is not
so critical at present future speculations have given rise to debates about whether the discretion
needs to be curtailed or not. This project specifically aims at looking upon one of the aspects
of this power that there should be guidelines regarding the exercise of this power of pardon by
President or Governor.

PROVISIONS IN THE CONSTITUTION

The power of pardon has been conferred upon the President and the Governor through Articles
72 and 161 of the Constitution respectively. Art. 72 reads as follows: Power of President to
grant pardons, etc., and to suspend, remit or commute sentences in certain cases:

1. The President shall have the power to grant pardons, reprieves, or remissions of punishment
or suspend, or remit or commute the sentence of any person convicted of any offence

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

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

3
H.M.Seervai, Constitutional law of India, 4th edition, Page 2004

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

2. Nothing in sub-clause (a) of clause (1) shall affect 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.

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

Art. 72(1) discusses about Union executive‟s pardoning power

Although the Power of Pardon in England and the United States is deemed to include the
powers of remission, reprieves and suspension, the Constitution of India specifically confers
these latter powers upon the President.4

Similarly, Article 161 of the Indian Constitution reads as follows:

Power of Governor to grant pardon 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
remission of punishment or to suspend, remit or commute the sentence of any person convicted
of any offence against any law relating to a matter to which the Executive power of the State
extends."

Terminologies explained:

1) Pardon – Release of punishment prescribed for the offender and the guilt of the
offender. Restores all social rights. It is an act of grace though within the limits of the
Constitution.

A pardon may be both, absolute or conditional. A pardon is conditional where it does not
become operative until the grantee has performed some specified act, re where it becomes void
when some specified event happens.

In English Law, “the effect of pardon under the Great Seal is to clear the person from all
infamy and from all consequences of the offence for which it is granted and from all
statutory or other disqualifications following upon conviction”5

4
Rohan Sahai, Limits of the Pardoning Power under Indian Constitution,
http://www.nujslawreview.org/articles2009vol2no2/rohan-sahai.pdf,

5
Halsbury’s laws of England(Halisham), 2nd edition., p.479

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 2) Commutation – Substitution of punishment of one form for another of lighter character.

3) Remission – Reduction of the amount of punishment without changing its character.

4) Suspension – Temporary delay in execution of a sentence when it is pending for a

pardon or commutation.

Objective of the Study

1) To understand the reviewability of pardoning power after clemency has been

granted.
2) To examine the contemporary practices in power of pardon and the issues
arising out of it.
3) To examine the opinion of Judiciary regarding specification of guidelines for
pardoning.

Hypothesis
The pardoning power is accepted to meet the end of justice but has not been used objectively
and therefore invites judicial review.

Research Methodology
The researcher has adopted doctrinal method of research. The researcher has made extensive
use of the library at the Chanakya National Law University and also the internet sources.

Source of data
The following are primary source of data:-

1. Legislative provision
2. Cases
The following are secondary source of data:-

1. Books
2. Website

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 3. Newspapers

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 ORIGIN & HISTORY
The Power of Pardon has a long history. Its origin dates back to ancient time. It is an artifact
i.e. a human creation of older times in the history. In the ancient times, it was monarchy
everywhere and there was no such concept as democracy. King was treated as a god. Kings
considered themselves as supreme power. They used to have complete control over the people
of their empire. History tells us that there were many kings who had misused their powers like
Aurangzeb, Babar, and Alexandra etc. Kings used their absolute power in their own manner
and own free will. They were not concerned about public welfare and providing justice to the
masses. They gave harsh punishments to the criminals without sufficient reasons as per their
own discretion. They were not bound by any advice of their ministry. They followed the policy
of “What king says must be right”. This was popular known as the Divine Origin theory of the
State and the King. In the medieval period when India was under the British rule, traces of
pardoning power could be found in Government of India Act,1935. The Section 295 of Govt.
of India Act, 1935 which was corresponding to Article 72 provides that

“(1) Where any person has been sentenced to death in a Province, the Governor-General in his
discretion shall have all such powers of suspension, remission of commutation of sentence as
were vested in the Governor-General in Council immediately before the commencement of
Part III of this Act, but save as aforesaid no authority in India outside a Province shall have
any power to suspend, remit or commute the sentence of any person convicted in the Province.
Provided that nothing in this sub-section affects any powers of any officer of His Majesty‟s
forces to suspend, remit or commute a sentence passed by a court-martial.

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

There was no provision in the Government of India Act 1935 corresponding to Article 161 of
the Constitution. The above Constitutional provisions were debated in the Constituent
Assembly on 29th December 1948 and 17th September 1949.6 The grounds and principles on
which these powers should be exercised were not discussed nor debated7.

6
Constituent Assembly Debates, Vol.7, pages 1118-1120 and Vol. 10
7
Dr. Subhash C Kashyap, Framing of India’s Constitution : A Study, 2nd Edition, page no 367-371, page 397-399

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In addition to the above Constitutional provisions the Criminal Procedure Code 1973 provides
for power to suspend or remit sentences under Section 432 which provides

(1) When any person has been sentenced to punishment for an offence, the appropriate
Government may, at any time, without conditions or upon any conditions that the person
sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the
punishment to which he has been sentenced.

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

(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of
the appropriate Government, not fulfilled, the appropriate Government may cancel the
suspension or remission, and thereupon the person in whose favour the sentence has been
suspended or remitted may, if at large, be arrested by any police officer, without warrant and
remanded to undergo the, unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this Section may be one
to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one
independent of his will.

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

Provided that in the case of any sentence (other than a sentence of fine) passed on a male person
above the age of eight years, no such petition by the person sentenced or by any other person
on his behalf shall be entertained, unless the person sentenced is in jail, and,

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

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

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(6) The provisions of the above sub-Sections shall also apply to any order passed by a Criminal
Court under any Section of this Code or of any other law, which restricts the liberty of any
person or imposes any liability upon him or his property.

(7) In this Section and in Section 433, the expression "appropriate Government" means, -

(a) In cases where the sentence is for an offence against, or the order referred to in sub Section
(6) is passed under any law relating to a matter to which the executive power of the Union
extends, the Central Government.

(b) In other cases the Government of the State within which the offender is sentenced or the
said order is passed.

And the power to commute sentence in Section 433 which provides The appropriate
Government may, without the consent of the person-sentenced commute-

(a) A sentence of death, for any other punishment provided by the Indian Penal Code (45 of
1860);

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

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

(d) A sentence of simple imprisonment, for fine.

Section 433A8 lays down restrictions on provisions of remission or commutation in certain

cases. It provides that “Notwithstanding anything contained in Section 432, where a sentence
of imprisonment for life is imposed on conviction of a person for an offence for which death is
one of the punishment provided by laws or where a sentence of death imposed on a person has
been commuted under Section 433 into one of imprisonment for life, such person shall not be
released from prison unless he had served at least fourteen years of imprisonment.” Section
434 confers concurrent power on the central government in case of death sentence. It states
that “The powers conferred by Sections 432 and 433 upon the State Government may, in the
case of sentences of death, also be exercised by the Central Government.” Section 435 of CrPc
provides that

8
Ins. by Act 45 of 1978, Sec. 32 (w.e.f. 18-12-1978).

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(1) The powers conferred by Sections 432 and 433 upon the State Government to remit or
commute a sentence, in any case where the sentence is for an offence-

(a) Which was investigated by the Delhi Special Police Establishment constituted under the
Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered
to make investigation into an offence under any Central Act other than this Code, or

(b) Which involved the misappropriation or destruction of or damage to, any property
belonging to the Central Government, or

(c) Which was committed by a person in the service of the Central Government, while acting
or purporting to act in the discharge of his official duty shall not be exercised by the State
Government except after consultation with the Central Government.

(2) No order of suspension, remission or commutation of sentences passed by the State

Government in relation to a person, who has been convicted of offences, some of which relate
to matters to which the executive power of the Union extends, and who has been sentenced to
separate terms of imprisonment which arc to run concurrently, shall have effect unless an order
for the suspension, remission or commutation, as the case may be, of such sentences has also
been made by the Central Government in relation to the offences committed by such person
with regard to matters to which the executive power of the Union extends.

Thus it talks about the power of the state government to remit or commute a sentence where
the sentence is in respect of certain offences specified therein will be exercised by the state
government only after consultation with the central government.

Apart from CrPc, IPC Sections 549 i.e. “ In every case in which sentence of death shall have
been passed, [the appropriate Government] may, without the consent of the offender, commute
the punishment for any other punishment provided by this code” and IPC Section 55 i.e. “ In
every case in which sentence of [imprisonment] for life shall have been passed, [the appropriate
Government] 10 may, without the consent of the offender, commute the punishment for
imprisonment of either description for a term not exceeding fourteen years.” of the IPC confer

9
Subs. by the A.O. 1950, for "the Central Government or the Provincial Government of the Province within
which the offender shall have been sentenced". The words in italics were subs. by the A.O.1937, for "the
Government of India or the Government of the place.
10
Subs by the A.O.1950, for "the Provincial Government of the Province within which the offender shall have
been sentenced". The words in italics were subs. by the A.O.1937, for "the Government of India or the
Government of the place.

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power on the appropriate government to commute sentence of death or sentence of
imprisonment for life as provided therein.

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 CONTEMPORARY PRACTICE
The contemporary practice in present scenario is that Council of Minister governs and dictates
all terms of pardoning power exercised by the executives. The Hon‟ble Court in the case of
Maru Ram v. Union of India11 ruled that the President and the Governors in discharging the
functions under Article 72 and Article 161 respectively must act not on their own judgment but
in accordance with the aid and advice of the Ministers. Article 74(1) of Indian Constitution
provides that:

There shall be a Council of Minster with Prime Minster at the head to aid and advise the
President who shall, in the exercise of his functions, act in accordance with such advice12.

Thus the pardoning power is being used partially. Many times political interest gains more
importance as compare to societal needs, less preferences are given to public interest and what
justice and morality demand. This power is misused and irrelevant considerations are
considered relevant, absence of application of mind etc. are the factors which influence
pardoning power. Fairness and legal certainty which occupies the center position in Rule of
Law should be kept in mind while exercising of such power.

There are two cases which show the contemporary practice.

1. Swaran Singh v. State of U.P.13 : There was a three judge bench consisting of K.T.
Thomas, M Punchi and M Srinavasan. In this case a MLA of the State Assembly had
been convicted of the offence of murder and within a period of less than two years he
succeeded in coming out of the prison as the Governor of Uttar Pradesh granted
remission of the remaining long period of his life sentence. The son of the deceased
moved the Allahabad High Court challenging the aforesaid action of the Governor and
the same having been dismissed the matter was brought to this Court by grant of special
leave petition. This Court had come to the conclusion that the Governor was not told of
certain vital facts concerning the prisoner such as his involvement in five other criminal
cases of serious offences, the rejection of his earlier clemency petition and the report of
the jail authority that his conduct inside the jail was far from satisfactory and out of two
years and five months he was supposed to have been in jail, he was in fact on parole
during the substantial part thereof. The Court further held that when the Governor was

11
1981 (1) SCC 107
12
Subs. By the Constitution (forty second amendment) act, 1976, sec. 13, for clause (1) (w.e.f. 3.1.1977)
13
AIR 1998 SC 2026

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 not posted with material facts the Governor was apparently deprived of the opportunity
to exercise the powers in a fair and just manner and the order fringed on arbitrariness.
The Court, therefore, quashed the order of the Governor with a direction to reconsider
the petition of the prisoner in the light of the materials which the Governor had no
occasion to know earlier. The Court held that if the pardon power “was exercise
arbitrarily, mala fide or in absolute disregard of the finer canons of the
Constitutionalism, the by-product order cannot get the approval of law and in such
cases, the judicial hand must be stretched to it”

2. Satpal v. State of Haryana14 : In this case there was two judge bench consisting of
G.B. Pattanaik & U. C. Banerjee. The Judgment was delivered by Pattnaik, J. As per
the facts of the case respondent Siriyans Kumar Jain along with four other accused
persons belonging to the Bhartiya Janta Party were tried for having committed offence
under Section 302 read with Sections 149 and 120-B as well as under Sections 392,
148, 452 and 323 of the Indian Penal Code. The learned Sessions Judge convicted all
the five accused persons. Siriyans Kumar Jain (Respondent 3) in the present writ
petition instead of surrendering to serve the sentence, as directed by this Court, filed an
application before the Governor invoking his jurisdiction under Article 161 of the
Constitution. The Secretary to the Governor addressed a letter to the Secretary to the
Government of Haryana, Department of Jails requesting for a report in the matter to be
placed before His Excellency, the Governor of Haryana. The appropriate authority,
namely, Joint Secretary to the Government in the Home Department indicated in his
note that the opinion of the Legal Remembrance should be obtained as to whether this
is a fit case for exercising the power under Article 161 of the Constitution or not. The
opinion of the Legal Remembrancer was then placed before the Minister concerned and
finally the Chief Minister agreed with the views of the Legal Remembrancer and came
to the conclusion that this is a fit case where discretion given under Article 161 of the
Constitution be exercised and relief prayed for be granted. On the basis of the aforesaid
advice of the Chief Minister the Governor finally granted pardon. It was contended that
the very order passed by the Governor would indicate total non-application of mind. It
was found that Governor has passed the order without being aided and advised by the
Council of Ministers and, therefore, the order is vitiated. Thus court held that “the said

14
AIR 2000 SC 1702

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 power being a Constitutional power conferred upon the Governor by the Constitution
is amenable to judicial review on certain limited grounds. The Court, therefore, would
be justified in interfering with an order passed by the Governor in exercise of power
under Article 161 of the Constitution if the Governor is found to have exercised the
power himself without being advised by the Government or if the Governor
transgresses the jurisdiction in exercising the same or it is established that the Governor
has passed the order without application of mind or the order in question is mala fide
one or the Governor has passed the order on some extraneous consideration.”

SCOPE OF JUDICIAL REVIEW

The Merriam Webster Dictionary of law says that Judicial Review is the power of a court to
review the action of public sector bodies in terms of their Constitutionality in some
jurisdiction; it is also possible to review the Constitutionality of law itself. Judicial review in
India can be broadly divided into judicial review of legislative action, judicial review of
judicial decisions and judicial review of administrative action.
The court in the exercise of this power ought to protect the people‟s fundamental and human
rights.
The question which arises here is that whether the judicial review has any limit. In Syed T.A.
Haqshbandi v State of J&K15 the Supreme Court observed that:
“Judicial review is permissible only to the extent of finding whether the process in reaching
the decision has been observed correctly and not the decision itself, as such. Critical or
independent analysis or appraisal of the materials by the court exercising powers of judicial
review unlike the case of an appellate court would neither be permissible nor conducive to
the interests of either the officer concerned or the system and institutions. Grievances must be
sufficiently substantiated to have firm or concrete basis on properly established facts and
further proved to be well justified in law, for being countenanced by the court in exercise of
its powers of judicial review. Unless the exercise of power is shown to violate any other
provision of the Constitution of India or any of the statutory rules, the same cannot be
challenged by making it a justifiable issue before the court”.
The Epuru Sudhakar case16 is the latest in the application of judicial review of cases related
to pardoning power.
It once again brought in light the view that the exercise or non exercise of pardoning power
by the President and the Governor would not be immune from judicial review.
The two judges contended that the exercise of this pardoning power must have coherence
with
the principles of Rule of Law. “Rule of Law is the basis for evaluation of all decisions (by the
court)... That rule cannot be compromised on the grounds of political expediency. To go by

15
(2003) 9 SCC 592
16
Epuru Sudhakar & Anr. v. Govt. of A.P. & Ors. AIR 2006 SC 3385

17 | P a g e
such considerations would be subversive of the fundamental principles of the Rule of Law
and it would amount to setting a dangerous precedent”17
The Supreme Court had set aside a decision of the then Andhra Governor, remitting the
sentence of a Congress activist who had faced ten years in prison for killing two persons.
“Exercise of executive clemency is a matter of discretion and yet subject to certain standards.
It is not a matter of privilege. It is a matter of performance of official duty... the power of
executive clemency is not only for the benefit of the convict, but while exercising such a
power the President or the Governor as the case may be, has to keep in mind the effect of his
decision on the family of the victims, the society as a whole and the precedent it sets for the
future.”
“An undue exercise of this power is to be deplored. Considerations of religion, caste or
political
loyalty are fraught with discrimination,”
The judges also stated that the pardoning orders under judicial review can be termed as
invalid if the order passed is:
• Without application of mind
• Mala fide
• Wholly on irrelevant considerations
• Relevant material kept out of consideration
• Based on arbitrariness18

Regarding their opinion on this power they contended that:

• This power is discretionary subject to certain standards. It is an executive action that set
asides the punishment of a crime.
• If obtained through mistake or misrepresentation it can be cancelled.
• Pardoning authorities are sole judges of facts and situations.
Another landmark case is the Supreme Court case of Mansukhlal Vithaldas Chauhan v. State
of Gujarat19. It clarified that the major objective of judicial review is not to create a judicial
substitute for an executive one rather it is to limit itself to questions of legality.
Important among them are:
1. Did the decision making authority exceed its powers?
2. Did the authority commit an error of law?
3. Did the pardoning authority commit a breach of the rules of natural justice?

17
Ibid Para 11
18
Ibid Para 16
19
AIR 1997 SC 3400

18 | P a g e
4. Did the authority reach a decision that no reasonable tribunal would have reached?
5. Did the authority abuse its powers? It sincerely accepted that the court does not have the
expertise to correct an administrative decision.

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 IMPORTANT CASES & OPINION OF JUDGES
Dhananjoy Chatterjee v. State of West Bengal 20 Bench – K.G.Balakrishnan and
B.N.Srikrishna Appellant submitted that their petition filed under Art. 161 was not properly
dealt by the authorities that is the State Govt. and that the Governor was not apprised of the
relevant facts and materials and there was no application of mind. Court admitted the fact that
the Governor was deprived of his opportunity to use the power in a fair and just manner. Even
though the Governor, according to previous interpretations, is to use its power on the basis of
aid and advice of the Council of Ministers, yet material facts, including mitigating factors must
be considered. It was ordered that the material facts along with other factors be present in front
of the Governor for proper exercise and creates lack of interest in the Governor or deprives
him. So according to the researcher, there should be some guidelines to be followed by the
Governor so that he is not fully autocratic, nor totally dependent on the Council of Ministers
for their binding aid and advice.

Kehar Singh v. Union of India21 Bench – R.S.Pathak(CJ), E.S.Venkataramiah, Ranganath

Mishra, M.N.Venkatachalliah, N.D.Ojha

Kehar Singh was convicted of murdering Late Mrs. Indira Gandhi. He was awarded death
sentence by the Trial Court of Delhi. He also appealed to the High Court which turned down
his appeal and finally to the Supreme Court which pronounced him guilty. He filed mercy
petitions to the President but reply came which stated that, “The President is of the opinion by
him. Thus we find that the practice of Council of Ministers to aid and advice which is to be
binding on the Governor is not a good practice as it leads to misuse that he cannot go into the
merits of a case finally decided by the highest court of the land”.22 Finally his son appealed to
the Supreme Court under a special leave appeal.

Pathak C.J. held that Article 21 is of paramount importance and since power of pardon is a
Constitutional scheme therefore it was to be properly used and the merits of the case should be
looked into by the President. He said “… the fallibility of human judgment cannot being
undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has
been considered appropriate that in the matter of life and personal the protection should be
extended by entrusting power further ot some higher authority to scrutinize the validity of the

20
AIR 2004 SC 3454
21
AIR 1989 SC 653
22
Ibid pp.656

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threatened denial of personal liberty”23 So the President ought to go into the „merits of the
case‟ & its judgment, scrutinize the evidence himself & deliver his own verdict. President
meant only to correct „Judicial Errors‟ and „Reasons of State‟.

Pathak C.J. referred to the case of Sarat Chandra Rabha v. Khagendra Nath24 and the case U.S.
v. Benz25 to distinguish between a court reducing a sentence and an executive remission of the
remaining part of the prisoner‟s sentence. He explained the theory of different planes. He said
“we are of the view that it is open to the President in the exercise of the power vested in him
by Art. 72 of the Constitution to scrutinize the evidence on record of the criminal case and
come to a different conclusion from that recorded by the court in regard to the guilt of, and
sentence imposed 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. The President
acts in a wholly different plane from that in which the court acted. He acts under a
Constitutional power and the nature of which is entirely different from the judicial power and
cannot be regarded as an extension of it. And this is so, notwithstanding that the practical effect
of the Presidential act is to remove the stigma of guilty from the accused or to remit the sentence
imposed on him.”26

Regarding the guidelines to be exercised by the President while using his Power of Pardon
Pathak C.J. stated that “It seems to us that there is sufficient indication in the terms of Article
72 and in the history of the power enshrined in the provision as well as existing case-law, and
specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any
precise clearly defined and sufficiently channelized guidelines, for we must remember that the
power under Article 72 is of the widest amplitude, can contemplate myriad kinds and categories
of cases with facts and situations varying from case to case, in which the merits and reasons of
State may be profoundly assisted by prevailing occasion and passing time”27

It was held that the scope of Article 72 was judicially determinable and it fell “squarely under
Judicial Domain”.

23
Supra note 36 pp. 657
24
AIR 1961 SC 334
25
75 L.Ed
26
Supra note 36 pp. 658
27
Supra note 36 pp. 661

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Thus in this case we find that the Judicial Opinion is against the opinion of the researcher that
there should be some specific guidelines to be followed by the Governor so that he is not fully
autocratic, nor totally dependent on the Council of Ministers for their binding aid and advice.

Maru Ram v. Union of India28 In this case, the Constitutional validity of Sec 433-A of the
Criminal Procedure Code (Cr.P.C) was challenged. According to it, every prisoner who
belonged to the category of: (a) Those who initially were given death sentence but later it was
commuted, (b) those who were given life sentence and not remitted, were to undergo at least
14 years of life imprisonment.

The petitioners contended that it eclipsed the power of the President to grant pardons under
Article 72 and 161. It was argued that since Sections 432 and 433-A are statutory provisions
and modus operandi of the Constitutional power under Articles 72 and 161, Section 433 would
be ineffective because it detracts from the operation of Sections 432 and 433-A which are the
legislative surrogates, as it were, of the pardon powers under the Constitution. It was held htat
“although the powers may be similar, but they are not the same or identical. The two powers
differ in their source, substance and strength. Section 433A cannot be invalidated as indirectly
violative of Articles 72 and 161 which cannot suffer the vicissitudes of simple legislative
process.”29

The court held the fact that the power under Article 72 and 161must be exercised by the
President or the Governor in accordance with the aid and advice of Council of Ministers.
KrishnaIyer J. said “It is fundamental to the Westminster system that the Cabinet rules and the
Queen reigns. The President and the Governor, be they ever so high in textual terminology, are
but functional euphemisms promptly acting on and only on the advice of the Council of
Ministers save in a narrow area of power. So, even without reference to Article 367(1) and ss.
3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that in the matter of exercise of the
powers under Articles 72 and 161, the two highest dignitaries in our Constitutional scheme act
and must act not on their own judgment but in accordance with the aid and advice of the
ministers. The Constitutional conclusion is that the Governor is but a shorthand expression for
the State Government and the President is an abbreviation for the Central Government.”30

28
1981 SCR (1) 1196
29
Ibid pp. 1211
30
Ibid pp. 1240

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Regarding the need for guidelines the court held that guidelines are essential for the President
and Governor in use of its pardoning power as it is a way to prevent arbitrariness by the
President or his Council of Ministers. It was held that, “An issue of deeper import demands our
consideration at this stage of the discussion. Wide as the Power of Pardon, commutation and
release (Arts. 72 and 161) is, it cannot run riot; for no legal power can run unruly like John
Gilpin on the horse but must keep sensibly to a steady course. Here, we come upon the second
Constitutional fundamental which underlies the submissions of counsel. It is that all public
power, including Constitutional power, shall never be exercisable arbitrarily or mala fide and,
ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power, we
proceed on the basis that these axioms are valid in our Constitutional order.

The jurisprudence of Constitutionally canalized power as spelt out in the second proposition
also did not meet with serious resistance from the learned Solicitor General and, if we may say
so rightly. Article 14 is an expression of the egalitarian spirit of the Constitution and is a clear
pointer that arbitrariness is anathema under our system. It necessarily follows that the power
to pardon, grant remission and commutation, being of the greatest moment for the liberty of
the citizen, cannot be a law unto itself but must be informed by the finer canons of
Constitutionalism. In the Inter-national Airport Authority case this court stated:

"The rule inhibiting arbitrary action by Government which we have discussed above must
apply equally where such corporation is dealing with the public, whether by way of giving jobs
or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship
with any person it likes at its sweet will, but its action must be in conformity with some
principle which meets the test of reason and relevance.

This rule also flows directly from the doctrine of equality embodied in Article 14. It is now
well settled as a result of the decisions of this Court in E.P.Royappa v. State of Tamil Nadu
and Maneka Gandhi v. Union of India that Article 14 strikes at arbitrariness in State action
and ensures fairness, and equality of treatment. It requires that State action must- not be
arbitrary but must be based on some rational and relevant principle which is nondiscriminatory;
it must not be guided by any extraneous or irrelevant considerations, because that would be
denial of equality. The principle of reasonableness and rationality which is legally as well as
philosophically an essential element of equality or non-arbitrariness is projected by Article 14
and it must characterise every State action, whether it be under authority of law or in exercise
of executive power without making of law.

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Thus in this case we find that the Judicial Opinion is in unanimity with the opinion of the
researcher that there should be some specific guidelines to be followed by the Governor so that
he is not fully autocratic, nor totally dependent on the Council of Ministers for their binding
aid and advice.

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 CONCLUSION
Precisely, what we can conclude on the basis of this research paper is that the concept of
pardoning power is not something new or nascent. It has been in existence since ages together
and has greatly evolved with the passage of time. This evolution has both positive and negative
aspects but the latter dominates. Positive aspects include things like justification for its
existence, it being a measure to act as an inter organ control on the judiciary etc. That is why,
it was adopted from the Government of India Act with just slight modifications and without
much deliberations. But then the sad and unfortunate part of the story is that, there has been
continuous misuse and abuse of this power, sometimes by the executive by arbitrary exercise
and mostly by the Council of Ministers. The Constitution of India does not authenticates this
practice of the President being bound by the advice of the Council of Ministers in the exercising
of this power. But this is where the Indian Judiciary stands guilty and is to be blamed as it has
interpreted this power in a completely wrong manner in many famous cases discussed. The
Council of Ministers has always been taking full undue advantage of this wrong interpretation
by prioritizing self and party interests over the interests of the society at large.

Now, we as future lawyers ought to restore status quo and bring back into practice the original
mindset with which this power was instituted in the Executive.

It never included any compulsory role of the Council of Ministers nor the drafters had expected
its misuse by the Executive. But the way it is being practiced in the current scenario is definitely
forcing us to have certain predefined and prefixed guidelines for the exercising of this power.

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 BIBLIOGRAPHY
BOOKS REFERRED
1) H.M.Seervai, Constitional law of India, 4th Edition, 2008.
2) Constituent Assembly Debates, Vol.7, pages 1118-1120 and Vol. 10.
3) Mahendra P. Singh, V.N.Shukla‟s Constitution of India, 11th Edition, 2008.

WEBSITES
1) Rohan Sahai, Limits of the Pardoning Power under Indian Constitution,
http://www.nujslawreview.org/articles2009vol2no2/rohan-sahai.pdf, accessed on 25th Feb,
2019.
2) Subodh S. Patil, Status Of President Under Constitution: Problems And Perspectives,
http://www.indialaws.info/display.aspx?4514, accessed on 27th Feb, 2019.
3) Kaushal Shroff, Presidential Pardon : A legal, historical and Political perspective,
http://www.legalserviceindia.com/article/l370-Presidential-Pardon.html, accessed on 26th
Feb, 2019.
4) Dr. A. Krishna Kumari, Capital Punishment And Statutory Frame Work In India,
http://works.bepress.com/cgi/viewcontent.cgi?article=1008&context=krishnaareti, accessed
on 27th Feb, 2019.
5) Bhumika Sharma, World Perspective of the Power of Pardon,
http://www.indlawnews.com/Newsdisplay.aspx?uid=d492c53f-1ed3-4118-
8321b65c797f5795&type=1, accessed on 25th Feb, 2019.
6) Written Submissions of Senior Counsel Soli Sorabjee as Amicus Curiae,
http://www.ebcindia.com/downloads/written_submissions_of_mr_soli_sorabjee_in_power
_to_pardon_case.pdf

CASES
1) Nar Singh v. State of Uttar Pradesh AIR 1954 SC 457
2) Maru Ram v. Union of India 1981 (1) SCC 107
3) Swaran Singh v. State of U.P. AIR 1998 SC 2026
4) Satpal v. State of Haryana AIR 2000 SC 1702
5) Biddle v. Perovich 71 L. Ed.
6) Epuru Sudhakar & Anr. v. Govt. of A.P. & Ors. AIR 2006 SC 3385
7) Dhananjoy Chatterjee v. State of West Bengal AIR 2004 SC 3454
8) Kehar Singh v. Union of India AIR 1989 SC 653

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