DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

CONSTITUTIONAL LAW-II

TOPIC: ANALYSIS OF PARDONING POWER OF THE PRESIDENT

SUBMITTED TO: SUBMITTED BY:

Ms.AnkitaYadav Chaitanya

AssistantProfessor(Law)

B.A. LL.B (Hons.)

4TH SEMESTER

ROLL NO: 47
 TABLE OF AUTHORITIES

Cases

Anr.v. D. Rajaram and Ors, MANU/AP/0162/1960. .............................................................................10

Burdwick v. United States, 236 US 79; 59 L.ed.476 at 480. ...................................................................6
Ex parte Garland 71 U.S. 333 (1866). ....................................................................................................8
Harbans Singh v. State of Punjab 1987 Cri LJ 1088.............................................................................14
Harbans Singh v. State of U.P., AIR 1982 SC 849 ................................................................................17
K. M. Nanavati v. State of Bombay, AIR 1961 SC 112. .......................................................................18
K.M. Nanavati v. State of Bombay and and RamdeoChauhan v. State of Assam (2001) 5 SCC 714. ...12
Kehar Singh v. Union of India AIR 1989 SC 653 .................................................................................17
Knote v. United States 95 U.S. 149 (1877). .............................................................................................9
Madhav Shankar Sonawane v. State of Maharashtra 1982 (1) BomCR 702........................................17
Madhu Mehta v. Union of India, 1989Cri.L.J. 2321. ............................................................................15
Maqbool Hussain v. State of Bombay AIR 1953 SC 325. .....................................................................12
R.Raghupathy v. State of Tamil Nadu, 1984 Cri LJ (NOC) 117. ..........................................................13
RamdeoChauhan v. State of Assam (2001) 5 SCC 714. ........................................................................16
S.C. Jain, The Constitution of India-Select Issues and Perceptions 57(Taxmann: New Delhi, 2000). .10
Spencer v. Lapsley 61 U.S. (20 How.) 264, 266 (1857). .......................................................................15
Swaran Singh v. State of U.P (1998) 4 SCC 75. ...................................................................................17
T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68. .............................................................. 13
Triveniben v. State of Gujarat, (1989) 1 SCC 679. ...............................................................................14
United States v. Klein 80 U.S. (13 Wall.) 128, 147 (1871). ....................................................................8
United States v. Wilson 32 U.S. 150 (1833). ...........................................................................................7

Other Authorities

Balkrishana, “Presidential Power of Pardon”, 13 J.I.L.I (1971) at 104................................................. 11

Brian C. Kalt, “Pardon Me?: The Constitutional Case Against Presidential Self Pardons”, 106 Yale
Law Journal 1996 779 at 806. ...........................................................................................................15
Poornima Sampath and Priyadarshini Narayanan, “Mercy Petitions: Inadequacies in Practice”, 12
Stud Adv (2000) 72 at 74. ..................................................................................................................13
Upendra Baxi, “Clemency, Erudition and Death: The Judicial Discourse in Kehar Singh”, 30 J.I.L.I
(1988) 501 at 503............................................................................................................................... 14

Books

P.J Dhan, “Justiciability of the President’s Pardon Power”, 26 IBR 1999 70-71. ...................................9
P.J. Dhan, “Justiciability of the President’s Pardon Power”, 26 Indian Bar Review 1999, at 69. ...........7
Subhash C. Jain, “The Constitution of India- Select Issues & Perceptions”, Taxmann Publications
Ltd., New Delhi, 2000) at 59 .............................................................................................................16
 Acknowledgement

I express my gratitude and deep regards to my teacher for the subject Miss.Ankita Yadav for
giving me such a challenging topic and also for her exemplary guidance, monitoring and
constant encouragement throughout the course of this thesis.

I also take this opportunity to express a deep sense of gratitude to my seniors in the college
for their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.

I am obliged to the staff members of the MadhuLimaye Library, for the timely and valuable
information provided by them in their respective fields. I am grateful for their cooperation
during the period of my assignment.

Lastly, I thank almighty, my family and friends for their constant encouragement without
which this assignment would not have been possible.
 RESEARCH METHODOLOGY

The research methodology used in the project is doctrinal. This means the data and
information used in the project are collected through pre published sources. Sources used in
the project to get the detailed and information data is collected from newspapers, magazines,
books and e-sources.
 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

In earlier times it was used by the Kings for their political gains, it helped them in generating
revenues. While now in the modern day understanding and use of pardoning power is more
often associated with notions of mercy and fairness, this analysis will demonstrate that it also
remains squarely in the political arena. Called pardons, amnesties, clemency, “grace”, or
mercy (as in Sweden), the pardon power is included in the written constitutions of nearly all
countries.

There are various reasons for the study of this area. The President’s power to pardon deals
with providing justice which is essentially a function of the judiciary. The reasons for this
interference of the executive in the functions of the judiciary have to be explored, understood
and appreciated because it is an obvious exception to the doctrine of separation of powers
which is one of the most eminent doctrines in the Constitution of India. The executive gives
an absolute power of pardon to the executive. The likelihood of abuse of such a power is
immense. Therefore, an analysis of case law with regard to presidential pardon is very
important. Pardon is a concept based on mercy, therefore, mercy as a concept has to be
studied and the question why mercy is vested with the executive and not with the judiciary
has to be looked into.

In the process of answering these questions the researcher also intends to look into some
other aspects of this power. One such aspect is to look into the wording of the Article. It is
very important to note the way the Courts interpret various Articles and what was the
intention behind framing such an Article. There are different ways in which an Article or a
Section can be interpreted. The importance of wording of Article and its interpretation can be
best understood by looking at Article 21 of the Constitution. The nature and scope of this
Article has changed drastically after the Court has started to look at the Article in a broader
manner. Similarly looking at this article’s words helps us to understand in a better manner. In
addition to this there are other issues as well like foreigners applying for pardon, judicial

1 Burdwick v. United States, 236 US 79; 59 L.ed.476 at 480.

review of pardon and the guidelines for exercise of pardon power. The researcher has made
an effort to discuss all these issues to get a complete understanding of the issue.

Position in Other Jurisdictions

The pardon power of the executive has its roots in the English history. The ancient English
theory with respect to executive pardon is that all powers of government originate from the
King, it was the King’s peace or the peace and good order of the King’s realm which was
offended by crime; hence, the King could bestow his mercy by pardon.2 Meanwhile the
American theory is established upon the principle that all governmental power is inherent in
the people. Hence, crime is an offence against the people, prosecuted in the name of the
people, and the people alone can bestow mercy by pardon. As subsequently is noted, the
people may confer the pardoning power upon any officer or board that they see fit. 3

To understand the concept of president’s power in India it is important to look at the

pardoning power in England and also in the United States of America. The British Crown
enjoys the privilege to grant pardon to any criminal. However it is not an absolute privilege,
it is to be done under ministerial advice. However, this power is immune to the concept of
judicial review. There is no time specified to grant pardon, it can be done before conviction as
well as after it. The Crown also has the power to grant reprieve as well, it may just
temporarily suspend the execution of the sentence; or may remit the whole or part of the
penalty.

In United States of America, the President derives this power to grant pardon from Art. II,
Sec. 2(1). This power is unlimited and can be exercised in case of all the offences with the
exception of impeachment. There is no time frame for the exercise of this power; it may be
exercised at any time after the commission of the suit. Like England there is no judicial
review of this power. However, in addition to that there is no legislative control as well. It is
not considered to be a private act, but it is included in the constitutional scheme. Now the
researcher would like to see at the development through case laws.

In United States v. Wilson4 Chief Justice Marshall, speaking for the Court, said that:

2 59 Am Jur 2d.

3 P.J. Dhan, “Justiciability of the President’s Pardon Power”, 26 Indian Bar Review 1999, at 69.

4United States v. Wilson 32 U.S. 150 (1833).

As this power had been exercised from time immemorial by the executive of that nation
whose language is our language, and to whose judicial institution ours bear a close
resemblance; we adopt their principles respecting the operation and effect of a pardon, and
look into their books for the rules prescribing the manner in which it is to be used by the
person who would avail himself of it. A pardon is an act of grace, proceeding from the power
entrusted 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. It is the private,
though official act of the executive magistrate, delivered to the individual for whose benefit it
is intended, and not communicated officially to the Court. A pardon is a deed, to the validity
of which delivery is essential, and delivery is not complete without acceptance. It may then
be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no
power in a court to force it on him.’ Marshall continued to hold that to be noticed judicially
this deed must be pleaded, like any private instrument.

In the next case which came in front of the Court was that Ex parte Garland.5 The Court
talking about pardon said that:

A pardon reaches both the punishment prescribed for the offence and the guilt of the
offender; and when the pardon is full; it releases the punishment and blots out of existence
the guilt, so that in the eye of the law the offender is as innocent as if he had never committed
the offence. If granted before conviction, it prevents any of the penalties and disabilities
consequent upon conviction from attaching; if granted after conviction, it removes the
penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a
new man, and gives him a new credit and capacity.

In United States v. Klein, 6 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 offence 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. Meaning therefore, that
there can be no legislative control over the pardoning power of the executive.

5 Ex parte Garland 71 U.S. 333 (1866).

6 United States v. Klein 80 U.S. (13 Wall.) 128, 147 (1871).

The issue related to the civil and political rights of the offender was discussed in the case
of Knote v. United States.7 The court said that once the pardon has been granted to a
particular person, then all his civil and political rights are restored, which were suspended
earlier. However, the court said that the person cannot be compensated for the loss he
suffered during the time of confinement.

Pardoning Power Under Indian Constitution

Before the commencement of the Indian Constitution, the law of pardon in British India was
the same as in England since the sovereign of England was the sovereign of India. The
Government of India Act, 1935, recognized and saved the right of the Crown or by delegation
to Governor-General to grant pardons, reprieves, respites or remissions of punishment.
Section 295 of the Act, 1935, had conferred on the Governor-General acting in discretion
power to suspend, remit or commute sentences of death. The prerogative of the Crown was
also delegated to the Governor-General by the Letters Patent creating his office, empowering
him to grant to any person convicted by any criminal offence in British India, a pardon either
free or subject to such conditions as he thought fit. 8

In India, the power to pardon is a part of the constitutional scheme. The Constitution of India
conferred the power on the President of India and the Governors of States.9

Constitutional Provisions:

Article 161 is the corresponding provision relating to the mercy jurisdiction of the President,

Article 72 says that the Governor has the power to grant pardons etc., and 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”. The executive power of the state
extends to matters with respect to which the legislature of the State has the power to make
laws.

Article 72(1) of the Indian Constitution confers the power on the President to grant pardons
and commute sentences in the following cases:

7 Knote v. United States 95 U.S. 149 (1877).

8 P.J Dhan, “Justiciability of the President’s Pardon Power”, 26 IBR 1999 70-71.

9 Id.
 • In all cases where the punishment or sentence is by a Court Martial.

• An 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.

• In all cases where the sentence is a sentence of death.

Article 72(1) says 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 passes by a Court Martial.

Reasons behind Pardoning Power:

The pardoning power is in derogation of the law. Implying that if laws could always be
enacted and administered so they would be just in every circumstance to which they are
applied, there would be no need for the pardoning power.10 Therefore, the power to pardon is
meant to be used in those circumstances where it would not be in the interest of justice to
strictly apply the law even if the circumstances call for the same. Executive clemency exists
to afford relief from undue severity or plain mistake in the operation or enforcement of the
criminal law. The administration of justice by the Courts is not necessarily always wise or
certainly understanding of circumstances, which may properly alleviate guilt. It is a check
entrusted to the Executive for special cases.11A country would be most imperfect and
deficient in political morality without a power for clemency.12

Wording of the Article:

It is very important to look at three words to understand the correct interpretation of the
article. These three words are ‘punishment’, ‘sentence’ and ‘offence’. The first two words
show that the pardon by the President will save a person from the consequences of an offence
and from a punishment as well. The researcher at first would like to look at the word
‘offence’. The manner in which it is used makes it quite evident that that the punishment and
sentence we spoke about are in respect of the offence committed. This implies that the

10The Deputy Inspector General of Police, North Range, Waltair and Anr.v. D. Rajaram and Ors,
MANU/AP/0162/1960.

11 S.C. Jain, The Constitution of India-Select Issues and Perceptions 57(Taxmann: New Delhi, 2000).

12 59 Am Jur 2d, Pardon and Parole, 5.

punishment which is supposed to be pardoned has to be in respect of an offence and not for
any simple breach of a condition.13

The reasoning that is given for the above said statement is derived from the meaning of the
word offence as it is given in the General Clauses Act, 1897. It is difficult to say that the
same definition cannot be applied to Art.72 as well. It has been said that in reality it is this
definition only which is used in this Article. It is said that the power of pardon that has been
granted, can be used in following cases:

• In respect of an act which, in the eyes of law, is an offence

• Which offence is in respect of a matter over which the executive power of the Union
extends and,

• For which punishment has already been adjudged.

It is a well established principle that a person can be sentenced or punished only when he has
been convicted by the court. A person is deemed to be innocent unless it is proved in the eyes
of the law. Thus if a person has not been given a chance of a fair trial or a proper
investigation has not been carried out against that person, then there is no reason why that
person should be given a pardon, because he is still innocent. Therefore, it is important to
note that the pardoning power can be exercised only in the case of a convicted person only.

However, in some of the cases the Court has said that the pardon can be granted even before
conviction or trial by a Court.This principle was laid down in the case of In Re: Maddela
Yerra Channugadu and Ors14; 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

13 Balkrishana, “Presidential Power of Pardon”, 13 J.I.L.I (1971) at 104.

14 In Re: Maddela Yerra Channugadu and Ors MANU/TN/0394/1954

conviction.” This decision was affirmed later in the cases of K.M. Nanavati v. State of
Bombay15 and and RamdeoChauhan v. State of Assam16

Now let us look at another situation, if the trial of a person is held not by courts but by a
tribunal. Can we say that the act for which the trial has taken place in the tribunal is also an
offence? The general situation will be that of non-compliance of the terms of a certain
contract and therefore, termination of the same. The answer would be no, as in such a case
the term, ‘breach of conditions’ is used and not the word offence. To be more precise, the
word offence can be used only in the case when the act done falls within the scope of the
word offence as it is defined in the Indian Penal Code. In addition to this it is important to
note that the person should be inquired under Code of Criminal Procedure, because if it is
done under an Act which does not characterize the act as an offence, then the word
punishment would not hold the same meaning as it is meant to be in Art.72. This issue has
been discussed in Maqbool Hussain v. State of Bombay.17

The same issue was discussed in S.A. Venkataraman v. Union of India;18 the Court in this
case held that:

Before Article 20(2) could be invoked, it is essential that the earlier prosecution must have
been under the Act which created that offence. After looking at these two cases it is evident
that before the question of the exercise of the power of the President to grant pardons can
arise the person to whom pardon is granted must have been awarded punishment or sentenced
by a competent court of law or judicial tribunal.

15AIR 1981 SC 112. The Supreme Court has, however, created an exception to the above rule in
K.M. Nanavati’s case where it held that the Governor cannot exercise his powers under Article 161
when the matter is sub-judice in the Supreme Court during the time Article 142 is in operation.

K.M. Nanavati v. State of Bombay 16 and and RamdeoChauhan v. State of Assam (2001) 5 SCC 714.

17Maqbool Hussain v. State of Bombay AIR 1953 SC 325. “the Court in this case observed that in order
that the protection of Art 20(2) be invoked by a citizen there must have been a prosecution and
punishment in respect of the same offence before a Court of law or a tribunal, required by law to
decide the matters in controversy judicially on evidence on oath which it must be authorized by
law to administer and not before a tribunal which entertains a departmental or administrative
enquiry. The very wording of the Art.20 would indicate that the proceedings therein contemplated
are of nature of criminal proceedings before a Court of law or a judicial tribunal, in accordance
with the procedure prescribed in the statute which creates the offence and regulates the
procedure.”

18 AIR 1964 SC 375.

Distinction between Pardon and Amnesty:

The issue that is discussed under this head is that whether there is a difference between
amnesty and pardon. Taking the situation of revolts, in such cases the head of the state makes
a proclamation that the rebels who surrender would be granted pardon and all their offences
will be omitted. Can we say here that the President has the power to do so under Art.72? If
we look at the situation more closely then we can see that irrespective of the words used by
the President in the proclamation actually does nothing more than giving a promise to the
rebels. Therefore, even if the word pardon has been used in the proclamation, in actual the
action of the head of the state does not amount to pardon from a punishment. The reason
being, at the time of the issue of declaration no person would have been awarded any
punishment. As said earlier that it is important to prove a person guilty before he can be
granted pardon, it is important to prove that a person has participated in a rebellion.
Therefore, before granting pardon it is important to prove in the Court that the person has
participated in the rebellion.

Pardon is granted to a specified individual while the promise not to take action on the rebels
surrendering arms is addressed to an unspecified body of rebels. Such an action therefore
may not be termed grant of pardon in the sense in which the expression is used in Art 72.
Thus the President does not have the power of granting amnesty to rebels. This power is
vested only with the Parliament. It is important to note that the power given under Art. 72 is
not unlimited, it is only in respect to the offences mentioned in the sub-clause (a), (b) and (c)
of clause 1 of the Article. The President can exercise his power only in respect of the subjects
to which the executive power of the union extends. Thus, it is clear that pardon and amnesty
differ in their import and therefore amnesty does not fall within the ambit of Article 72.

Natural Justice and Pardoning Power:

There is a big question that whether the principles of natural justice be applied to Art. 72 and
Art.161. The researcher at first would look at the arguments favoring the application. Though
the power to grant pardon is executive, it is more quasi-judicial in nature. 19 A quasi-judicial

19 R.Raghupathy v. State of Tamil Nadu, 1984 Cri LJ (NOC) 117.

body would impose a duty to act fairly. 20 The Supreme Court has held that the constitutional
safeguard enshrined in Article 21 extends to the executive disposal of mercy petitions.21 As a
part of the constitutional scheme, Article 72 is subject to the discipline of Article 21.
Therefore, the accused should have a minimal right to fair hearing. 22

On the other hand there have been cases in which the Court has said against the application of
natural justice. The Supreme Court has held in Harbans Singh v. State of Punjab23 that the
power of the government is executive in nature and the principles of natural justice cannot be
grafted thereon by means of judicial innovations and activism. Since the principles of natural
justice have been applied at each stage of the sentencing procedure, it may legitimately be
done away with at the executive stage.

Time Frame for the Exercise of Power:

Even in this area there is a debate as to whether we can have a time frame for the exercise of
the pardon power. The Supreme Court has taken both the stands and the researcher would
present both the view points. It has been observed by the Supreme Court that a period of
anguish and suffering is an inevitable consequence of sentence of death but a prolongation of
it beyond the time necessary for appeal and consideration of reprieve is not.

Keeping in mind the stand taken by the Court, it can be inferred that the Supreme Court is of
the view that delay in the decision of the President causes avoidable mental agony and
suffering to the convict. Therefore, to contain such unnecessary harm to the convict there
should be a time frame during which the executive has to give its decision.

Article 21 demands that any procedure, which takes away the life and liberty of persons, must
be reasonable, just and fair. This procedural fairness is required to be observed at every stage
and till the last breath of the life. If there has been an inordinate delay in the disposal of a

20Poornima Sampath and Priyadarshini Narayanan, “Mercy Petitions: Inadequacies in Practice”, 12

Stud Adv (2000) 72 at 74.

21 T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68.

22Upendra Baxi, “Clemency, Erudition and Death: The Judicial Discourse in Kehar Singh”, 30 J.I.L.I
(1988) 501 at 503.

23 Harbans Singh v. State of Punjab 1987 Cri LJ 1088.

mercy petition then procedural fairness is vitiated and Article 21 is violated.24 Therefore,
there should be a time frame for the disposal of a mercy petition.

However, there is a different point of view as well. In this the Court has taken a different
stand from that taken by the Court in earlier cases. The time taken by the executive for
disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry
to be made. It may also depend upon the number of mercy petitions submitted by or on behalf
of the accused.25 Moreover, no fixed delay can be considered a fixed period.26 The court,
therefore, cannot prescribe a time limit for disposal even of mercy petitions.

The Case of Presidential Self-Pardons:

This is another issue which needs to be looked at, whether the executive has the power to
grant self-pardons. The problem with the act of self-pardon is that it is likely to undermine
the public’s confidence in Presidency and the Constitution. It is also against the principles of
natural justice, that a person should judge himself. In the case of Calder v. Bull,27 the
Supreme Court expressed its view against allowing a person to be self-judge.

In one of his writings Madison wrote that, “No man is allowed to be a judge in his own cause,
because his interest would certainly bias his judgment, and not improbably, corrupt his
integrity.”28

The same principle was followed later in the case of Spencer v. Lapsley29 in addition to these
judgments there has been various other cases which unanimously state the principle that no
man shall be judge in his own case. The case indicates that not only is this a venerable
principle of philosophy and history, it is an essential part of the structure of our constitutional
government.

24 Triveniben v. State of Gujarat, (1989) 1 SCC 679.

25Triveniben v. State of Gujarat, (1989) 1 SCC 679; Sher Singh v. State of Punjab, 1983SCC (Cri)

461.

26 Madhu Mehta v. Union of India, 1989Cri.L.J. 2321.

27 3 U.S. (3 Dall.) 386 (1798).

28Brian C. Kalt, “Pardon Me?: The Constitutional Case Against Presidential Self Pardons”, 106 Yale
Law Journal 1996 779 at 806.

29 Spencer v. Lapsley 61 U.S. (20 How.) 264, 266 (1857).

Like other issues this one also has the other side of the argument where one can argue that
self-pardon can be exercised. As held by the Supreme Court in a number of judgments, the
President has to act on the advice of the council of ministers while granting pardon. Now,
since the council of ministers can be tried and put on trial for a criminal offence the question,
which arises, is whether they can pardon themselves. Article 72 of the Constitution creates no
exception to the President’s power to pardon in order to invalidate self-pardons. Therefore,
theoretically, a self-pardon by the council of ministers is very well possible.

Foreigners and the Pardoning Power:

The procedure for making mercy petitions has been laid down in sub-paragraph VIII of
Paragraph A of the “Procedure regarding petitions for mercy in death sentence cases.”
Petitions for mercy submitted on behalf of a convict under sentence of death shall be dealt
with mutatis mutandis in the manner provided by these instructions for dealing with a petition
from the convict himself. The petitioner on behalf of a condemned convict shall be informed
of the orders passed in the case.30 If the petition is signed by more than one person, it shall be
sufficient to inform the first signatory. The convict himself shall also be informed of the
submission of any petition on his behalf and of the orders passed thereon.”

From a perusal of the aforesaid paragraph, it can be seen that there is no bar to foreigners
making petition for mercy to the President of India on behalf of any of the convicts. Looking
to the very nature of the power to grant pardon or clemency, applications or petitions for
mercy by foreigners will have to be considered on the same footing as those submitted by
Indian citizens. In light of the above, it can be inferred that there is nothing to bar a foreigner
from applying for mercy.

Article 72 and Impact of other Statutes:

The conflict of Art .72, with another statute, came before the Court in the case of Maru
Ram v. Union of India.31 The issue in this case was, whether S. 433-A of Criminal Procedure
Code, would affect the Art.72 and Art.161 of the Constitution. It was argued that since
Sections 432 and 433-A, are statutory provisions, and modus operandi of the Articles 72 and

30Subhash C. Jain, “The Constitution of India- Select Issues & Perceptions”, Taxmann Publications
Ltd., New Delhi, 2000) at 59

31 Maru Ram v. Union of India AIR 1980 SC 2147.

161, therefore it would render Article 433-A ineffective. The reason for this was that, it was
different from the other two sections and therefore it would be against the Constitutional
Provisions. However, the court held that although the powers under Art. 72 and Art. 161 and
Sections 432 and 433-A may be similar, but they are not identical.

This decision was later affirmed in RamdeoChauhan v. State of Assam,32 it was held that the
power under Article 72 and Article 161 of the Constitution is absolute and cannot be
hampered by any statutory provisions such as Section 432, 433 and 433-A of the Code or by
any prison rules. A similar question came up before the Court in the case of Madhav Shankar
Sonawane v. State of Maharashtra,33 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 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 n o situation can any legislation place a
limitation on the power under Art. 72 and Art. 161.

Judicial Review of Article 72:

Supreme Court in Maru Ram v. Union of India,34 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 execution are guarantors of the valid play
power.” In Kehar Singh v. Union of India,35 it was said that the order of the President cannot
be subjected to judicial review on its merits except within the strict limitations defined in
Maru Ram’s 36 case. Looking at these cases, the Court did not actually call for judicial
intervention. However, in Swaran Singh v. State of U.P,37 the Supreme Court invalidated the

32 RamdeoChauhan v. State of Assam (2001) 5 SCC 714.

33 Madhav Shankar Sonawane v. State of Maharashtra 1982 (1) BomCR 702.

34 Maru Ram v. Union of India AIR 1980 SC 2147.

35 Kehar Singh v. Union of India AIR 1989 SC 653

36 AIR 1980 SC 2147.

37 Swaran Singh v. State of U.P (1998) 4 SCC 75.

remission of sentence by the Governor because some material facts were not brought to the
knowledge of the Governor. Not only this, the Supreme Court had asked the President to
reassess his decision when it was of the view that the decision of the President was totally
arbitrary and unfair. 38

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. 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.

Pardoning Power and Judiciary

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. 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

38 Harbans Singh v. State of U.P., AIR 1982 SC 849

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. 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.39 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.40

Conclusion

As seen that Presidential pardon is one of the powers that been given to the executive by the
Constitution. The researcher in his conclusion would like to look back at the issues discussed
and analyze them.

The first issue that the researcher would take up is the importance and necessity of pardoning
power. It is very important to have this power in Constitution of all the countries. The reason
for this being that there should be some authority which should be present to keep a check
and rectify the mistakes made by the judiciary. The legislature can also do this, through a
process of passing a law. But, in the case of individuals it is not possible for the legislature to
pass a law. In such cases the executive can pardon the individual. This process is also
important because awarding death penalty to someone is the highest punishment that can be
awarded to anyone. Thus, it is important to review it by the Head of the State.

There is a necessity on the part of the legislature to bring an amendment to the constitution,
to prevent the use of power in one’s own case. Meaning that there should not be any self-
pardoning.On the part of the executive. The reason for this being that in such a case there
would be a bias and abuse of power will take place. It is also important to set a time frame for
the exercise of this power; this will help in early disposal of the cases. Judicial review of this
power is another issue which is debatable. The researcher is of the opinion that this power

39 Hukam Singh v. State of Punjab, AIR 1975 Punj & Har 148.

40 K. M. Nanavati v. State of Bombay, AIR 1961 SC 112.

should not be absolute, at the same time the judiciary should not interfere with his power too
much, it should only be done in the case of arbitrariness and malafide.

The principles of natural justice should be imbibed in the exercise of clemency powers
because: firstly, they do not affect the purpose of mercy jurisdiction and secondly, through
procedural fairness the scope of a bias is reduced. There is no need for any guidelines to be
set as the scope will differ from case to case basis.

BIBLIOGRAPHY

BOOKS

➢ D.D. BASU- CONSTITUTION OF INIDA

➢ M.P. JAIN- CONSTITUTION OF INDIA

➢ P.M. BAKSHI CONSTITUTION OF INDIA

ONLINE RESOURCES

➢ https://www.lawteacher.net/free-law-essays/administrative-law/power-to-
pardon-an-analysis-law-essays.php

➢ http://www.legalserviceindia.com/article/l149-Presidential-Pardon.html