SARDAR PATEL SUBHARTI INSTITUTE OF LAW.

MEERUT

TEAM CODE-____

IN- HOUSE MOOT COURT COMPETITION 2023

BEFORE THE HONORABLE SUPREME COURT OF INDUSLAND

UNDER ARTICLE 32 0F THE COSTITUTION OF INDUSLAND, 1950

(CASE CONCERNING ARTICLE 72 0F THE COSTITUTION OF INDUSLAND, 1950)

In the matter of

People’s Front for Democratic Rights

(Petitioner)

V.

Union of Indusland
(Respondent)

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TABLE OF CONTENTS

 LIST OF ABBREVIATIONS…………………………………………………………….3
 INDEX OF AUTHORITIES……………………………………………………………...4
 STATEMENT OF JURISDICTION ……………………………………………….….... 5
 STATEMENT OF FACTS ………………………………………………………………6
 ISSUES PRESENTED ……………………………………………………………..….....7
 SUMMARY OF ARGUMENTS …………………………………………………………8

BODY OF PLEADINGS 9-16

ISSUE:1- WHETHER THE EXECUTIVE POWER EXERCISED BY THE PRESIDENT

IN GRANTING PARDON TO MR. SUNDAR DAS IS AS PER THE SPIRIT OF THE
CONSTITUTION?

ISSUE: 2- WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

PARDON BY FEDERAL COURT IN THE PRESENT CASE VIOLATES THE
DOCTRINE OF SEPARATION OF POWERS?

PRAYER 17

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LIST OF ABBREVIATIONS

PIL Public Interest Litigation

SlP Special Leave Petition

Sec Section

SC Supreme Court

HC High Court

u/s Under Section

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INDEX OF AUTHORITIES

A. BOOKS REFERRED

 V.N. SHUKLA, CONSTITUTION LAW OF INDIA, EASTERN BOOK COMPANY,

INDIA, 2008, 11TH EDITION
 M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2010, 6TH
EDITION

B. WEBSITES REFERRED
1. www.lexisnexisacademic.com
2. www.vakilno1.com
3. www.indiakanoon.org
4. www.manupatra.com
5. www.ncaer.org
6. www.wikipedia.org

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STATEMENT OF JURISDICTION

THE RESPONDENT HAS RESPOND UNDER ARTCLE 321 OF THE CONSTITUTION OF

INDUSLAND, BEFORE THE HONOURABLE FEDERAL COURT OF INDUSLAND.

1
Article 32 in The Constitution Of Indusland 1949
32. Remedies for enforcement of rights conferred by this Part

(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 clause ( 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

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STATEMENT OF FACT

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.

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ISSUES RAISED

ISSUE:1- WHETHER THE EXECUTIVE POWER EXERCISED BY THE PRESIDENT

IN GRANTING PARDON TO MR. SUNDAR DAS IS AS PER THE SPIRIT OF THE
CONSTITUTION?

ISSUE: 2- WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

PARDON BY FEDERAL COURT IN THE PRESENT CASE VIOLATES THE
DOCTRINE OF SEPARATION OF POWERS?

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SUMMARY OF ARGUMENTS

ISSUE:1- WHETHER THE EXECUTIVE POWER EXERCISED BY THE PRESIDENT

IN GRANTING PARDON TO MR. SUNDAR DAS IS AS PER THE SPIRIT OF THE
CONSTITUTION?

The counsel would like to submit their argument on behalf of the petitioner that the executive
power exercised by the President in granting pardon to Mr. Sunder das is not in line with the spirit
of the Constitution. The petitioner contends that the power of the President to grant pardon is not
an absolute power, and must be exercised in accordance with the principles of justice, fairness,
and public interest.

ISSUE: 2- WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

PARDON BY FEDERAL COURT IN THE PRESENT CASE VIOLATES THE
DOCTRINE OF SEPARATION OF POWERS?

The petitioner argues that the power of pardon is not a personal prerogative of the President, but
is a public trust that must be exercised in the best interests of justice and the public good. The
petitioner relies on the case of “Ex parte Garland”2 in which the Supreme Court of the United
States held that the power of pardon is not a personal privilege of the President, but is a "part of
the constitutional scheme" for the administration of justice.

Therefore, the petitioner argues that the Federal Court has the duty to ensure that the President's
exercise of the power of pardon is consistent with the public interest and the rule of law.

2
(1867),

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BODY OF PLEADINGS

ISSUE:1- WHETHER THE EXECUTIVE POWER EXERCISED BY THE PRESIDENT

IN GRANTING PARDON TO MR. SUNDAR DAS IS AS PER THE SPIRIT OF THE
CONSTITUTION?

The counsel would like to submit their argument on behalf of the petitioner that the executive
power exercised by the President in granting pardon to Mr. Sunder das is not in line with the spirit
of the Constitution. The petitioner contends that the power of the President to grant pardon is not
an absolute power, and must be exercised in accordance with the principles of justice, fairness,
and public interest.

PARDONING POWER: PART OF CONSTITUTIONAL SCHEME

Espousing the nature of a “Pardon”, Justice Oliver Wendell Homes in “Biddle v. Perovich3” said:

“A pardon in our days is not a private act of grace from an individual happening to possess power.
It is a part of our Constitutional Scheme. When granted it is the determination of the ultimate
authority that public welfare will be served by inflicting less than what the judgement fixed.”

From the above case it is submitted that power of pardoning or pardoning power is granted by the
Constitution or shall be granted by the Constitution and is not a self-derived power. One can simply
not have access to the power of pardoning unless it is granted through the Constitutional Scheme.

The Constitution of India conferred the power on the President of India and the Governors of the
States by Articles.72 and 161 respectfully. Article 72 of the Constitution gives that the President

3
274 U.S 480 (1972)

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shall have the power to grant pardon4,reprieve5,respite6 or remission7 of punishment and to

suspend, remit or commute the sentence of any person convicted of an offence in

(a) a case tried by court martial

(b) a case relating to a law to which the executive power of the Union extends.

(c) The sentence awarded is of death.

By the virtue of this article the president can grant pardon but the materialistic fact is that whether
such power is an absolute one because the word “Shall” in clause (1)8 of the Article is ambiguous.

The counsel submits that though The President is not required to record reasons for either directing
the commutation of a sentence or refusing to do so. It depends upon his will whether he wants to
grant pardon or not, but this discretion should not be exercised on any malafide ground or should
not possess any kind of arbitrariness.

Further The petitioner can rely on several cases and statutes to support this argument. First, the
petitioner can rely on the landmark case of “Kehar Singh v. Union of India”9, where the Supreme
Court held that the power of the President to grant pardon is not absolute, but is subject to certain
limitations. The Court observed that “the power of pardon is a constitutional power, and must be
exercised in accordance with the principles of justice, equity, and good conscience”.

Former Chief Justice of India P.N. Bhagawati, in the case “Bachan Singh v. State of Punjab”10
was of the view that the President’s order passed under Article 72 of the Constitution is justiciable
on any of the following grounds –

4
Completely absolves the offender
5
Temporary suspension of the sentence
6
Awarding a lesser sentence on special ground
7
Reducing the amount of sentence without changing its character
8
The president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend,
remit or commute the sentence of any person convicted of any offence.
9
1989 AIR 653
10
1980 (2) SCC 684

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(1) That the authority which purported to have exercised the power had no jurisdiction to exercise
the same.

(2) That the impugned order goes beyond the extent of the power conferred by provisions of law
under which it is purported to be exercised.

(3) That the order has been obtained on the ground of fraud or that the same having been passed
considering extraneous considerations not germane to the exercise of the power conferred or, in
other words that the order is a result of mala fide exercise of power.

The counsel submits that the framers of Constitution had the inception that the misuse of the
pardoning power would be guarded by the Council of Ministers, they had a good faith on them but
today the time has changed, whenever a government comes in existence (if absolute) the Council
of Ministers appointed are generally having an absolute power and as Lord Acton has said “Power
tends to corrupt and absolute power corrupts absolutely: the absolute power had encrypted a
layer of corruption and due to it a danger of misuse of power is always existing”

In the present case the respondent share good relation with the Minister of sports, and in a sting
operation by media, the spokesperson of the president’s office revealed that Minister for sports
had a keen interest in getting the pardon sanctioned to Respondent, even the president was reluctant
to grant pardon but succumbed to advice of Council of Ministers. Which shows that the president
while exercising his power of pardon didn’t take any of the aforementioned grounds into
consideration, instead of merit, the pardon was granted due to political affiliation.

Further in the case “Satpal v State of Haryana”11 the Supreme Court quashed an order of the
Governor pardoning a person convicted of murder on the ground that the Governor had not been
advised properly with all the relevant materials. The Court spelt out specifically the considerations
that need to be taken account of while exercising the power of pardon, namely, the period of
sentence in fact undergone by the said convict as well as his conduct and behaviour while he
underwent the sentence. The Court held “not being aware of such material facts would tend to
make an order of granting pardon arbitrary and irrational”.

11
AIR 2000 SC 1702

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PRESIDENT POWER WAS EXERCISED IN ABSOLUTE DISREGARD OF THE FINER

CANONS OF THE CONSTITUTIONALISM

In this case, the petitioner can argue that the President's decision to grant pardon to Mr. Sunder
Das was not based on the principles of justice, equity, and good conscience and was against the
Rule of Law.

In “Bani Kanta Das and another v. State of Assam and others” 12, the court ruled that “Rule of
Law is the basis for evaluation of all decisions. That rule cannot be compromised on the grounds
of political expediency. To go by such considerations would be subversive of the fundamental
principles of the Rule of Law and it would amount to setting a dangerous precedent”

Further, it also contended that the President’s power to grant the pardon is to take care of their own
people and is expected to be exercised in a just, reasonable, and impartial manner. This did not
happen in the present case. The pardoning order has been granted on extraneous or wholly
irrelevant considerations.

The petitioner underlined that mere good behaviour of Mr. Rao in jail cannot be a sufficient ground
for grant of pardon as he was alleged to be involved in many other criminal cases.

Thus the counsel submits that the executive power exercised by the President in granting pardon
to Mr. Sunder Das was not in line with the principles of justice, equity, and good conscience, and
violated the principle of separation of powers. The petitioner can rely on the cases of Kehar Singh
v. Union of India and Article 161 of the Constitution, as well as the wider constitutional principles
of justice, fairness, and public interest, to support this argument.

12
(2009)15 SCC 206

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ISSUE: 2- WHETHER THE JUDICIAL REVIEW OF PRESIDENTIAL POWER OF

PARDON BY FEDERAL COURT IN THE PRESENT CASE VIOLATES THE
DOCTRINE OF SEPARATION OF POWERS?

The counsel would like to submit their argument on behalf of the petitioner that Judicial review of
Presidential power of pardon by federal court in the present case doesn’t violates the Doctrine of
Separation of Powers on following grounds.

Firstly, it is important to note that the Doctrine of Separation of Powers is not an absolute principle,
but rather a flexible guideline that is subject to interpretation and application in different contexts.
In the present case, the petitioner argues that the exercise of judicial review over the President's
power of pardon is necessary to ensure that the power is exercised in accordance with the spirit of
the Constitution and the rule of law.

The Hegelian view advocates that “pardons are justified only when they are ‘Justice-
Enhancing”, that is, in certain cases justice may not be served without the grant of pardon due to
the unduly harsh nature of the sentence or due to an individual being sentenced wrongly. As per
this view, the grant of pardon in cases where a larger goal of justice is not sought to be achieved
would be unwarranted.

In the present case the respondent was convicted by the Sessions Court for the murder of Rajat
Singh (petitioner) and his family comprising of his wife and two teenage daughters, the reason
behind the murder was political rivalry between Mr. Sunder Das(Respondent) and Mr. Rajat Singh.
The counsel submits that killing someone, including his whole family, just for a minor rivalry is a
gruesome and brutal act.

ARTICLE 72 IS SUBJECTED TO JUDICIAL REVIEW ON THE FOLLOWING

GROUNDS

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In “Epuru Sudhakar v. Government of Andhra Pradesh13”, the Supreme Court has held that the
pardoning power of the President under Article 72 is subject to Judicial Review on the following
grounds:

 No application of mind.
 Mala fide intention.
 Irrelevant or Extraneous considerations.
 Relevant materials not considered.
 Arbitrariness

It is contended that the President’s power to grant the pardon is to take care of their own people
and is expected to be exercised in a just, reasonable, and impartial manner. This did not happen in
the present case. The pardoning order has been granted on extraneous or wholly irrelevant
considerations, without the application of mind, the petitioner underlined that mere good behaviour
of Mr. Rao in jail cannot be a sufficient ground for grant of pardon as he was alleged to be involved
in many other criminal cases. Thus the legislative act of the president can’t be considered as justice
enhancing but an outcome of political affiliation.

The Constitution is the parent statute in a nation and for the President to be above it will indeed,
for all intents and purposes, devalue the sanctity of the document. The fundamental rights are the
backbone of this constitution that we are speaking of and it may be thus said that to give the
President the power to supersede the authority that it creates, i.e., “to allow him to not be
questioned about his actions and decisions would be unjustified”.

In the case “S.P. Sampad Kumar v. Union of India14” the court held “The power of judicial review
is an integral part of our Constitution system and without it there will be no government of laws
and the rule of law would become a teasing illusion and a promise of unreality.”

13
AIR 2006 SC 3385
14
(1987) 1 SCC 124

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Rule of law basically infers that Law is above all. To put it in another way one can, say that
everyone is inferior to the law. Thus, the President is also inferior to the law and hence all his
decisions and powers can be subjected to Judicial Review

In “Swaran Singh v. State of U.P” 1523 the Supreme Court invalidated the 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,

Three-Judge Bench held that If such power was exercised arbitrarily, malafide 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.”

EXERCISE OF EXECUTIVE CLEMENCY IS NOT A MATTER OF PRIVILEGE, AND

SUBJECT TO CERTAIN STANDARDS

The counsel submits that 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.
Justice Kapadia: “An undue exercise of this power is to be deplored. Considerations of religion,
caste or political loyalty are fraught with discrimination,” this judgment reiterated the settled
position of law that exercise or non-exercise of the pardoning power by the President or Governor
would not be immune from judicial review.16

The petitioner argues that the power of pardon is not a personal prerogative of the President, but
is a public trust that must be exercised in the best interests of justice and the public good. The
petitioner relies on the case of “Ex parte Garland”17 in which the Supreme Court of the United

15
16
Epuru sudhakar case
17
(1867),

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States held that the power of pardon is not a personal privilege of the President, but is a "part of
the constitutional scheme" for the administration of justice.

Therefore, the petitioner argues that the Federal Court has the duty to ensure that the President's
exercise of the power of pardon is consistent with the public interest and the rule of law.

INTERNATIONAL PERSPECTIVE:

Further, the petitioner argues that the exercise of judicial review over the President's power of
pardon does not violate the principle of separation of powers, as long as the court is not interfering
with the policy-making discretion of the executive branch. The petitioner relies on the case of
“Youngstown Sheet & Tube Co. v. Sawyer”18, in which the Supreme Court of the United States
held that the President's exercise of executive power must be within the constitutional and statutory
limits, and that the courts have the duty to review the exercise of such power when it exceeds those
limits. Therefore, the petitioner argues that the Federal Court's exercise of judicial review over
the President's power of pardon is necessary to ensure that the power is exercised within the
constitutional and statutory limits, and does not violate the principle of separation of powers.

Bill Clinton President of US granted about 395 pardons during his presidency amongst which 140
were issued on his final day in his office. It could be clearly seen that pardon power could be
misused. Recently a house judiciary Committee which was hearing into the decision to commute
the sentence of former White House aide I. Lewis “Scooter” Libby has said that it would review

all the previous pardon given by various presidents.

Thus when the President’s Absolute power to grant a pardon can be brought under judicial review
then why can’t the power granted to Indian President be reviewed. In conclusion, the petitioner
argues that the Federal Court's exercise of judicial review over the President's power of pardon in
the present case is necessary to ensure that the power is exercised in accordance with the spirit of
the Constitution and the rule of law, and does not violate the principle of separation of powers.

18
1952

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PRAYER

Therefore, in light of the issues raised, arguments advanced and authorities cited, may this Hon‘ble
Court be pleased to Declare that:

1. The executive power exercised by the president in granting pardon to mr. Sundar das
is not as per the spirit of the constitution.
2. 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 order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted

Respectfully Submitted
Counsel for Petitioner.

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