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Evolution Of President’s Pardoning Power In India

Written by: Samarth Agarwal, Student, National Law University, Jodhpur


The doctrine of “Separation of Powers” is enshrined in the Constitution of India which promulgates the three organs of the Constitution, namely, legislature, executive and judiciary to operate in their own domain without protruding each other’s functioning. Although the Constitution doesn’t validate separation of powers in its undiluted form, it clearly separates the role of the different organs.[1] Over the years, the pardoning power of the President has evolved tremendously through the various judgements of the Supreme Court and what was an absolute power of the executive has been brought under the clutches of the judiciary over time.

It was in the case of In re Maddela Yerra Channuga[2] where the question of President’s pardoning power in India was dealt with for the first time where the court remarked that the Constitutional provision of India dealing with the President’s pardoning power is akin to the relevant provision of the Constitution of USA, thus, Article 72 of our constitution should be interpreted as per the rulings of the American Supreme Court with respect to the extent and the occasion for the exercise of this power.

An important question regarding who can exercise the power to grant pardon was raised in the case of Thivalappil Kunjuvaru Vareed v. The State of Travancore[3]. The apex court in this case elucidated that it is only the President and the Governor who can exercise the power to grant pardon. Any other person exercising this power will be held liable for going against the Constitution and will be subjected to judicial scrutiny.

In another case, Supreme Court dealt with a unique issue pertaining to the law of pardon regarding effect of the exercise of power of Pardon by the President or the Governor.[4] This question holds significance because of its far reaching consequences, primarily in the cases of Election disputes, where questions of disqualifications from contesting elections on the grounds of earlier convictions have arisen time and again before the Courts.[5] It was held by the court that there exists a distinction between an order granting pardon by an executive authority and an order of reduction of sentence by the Court. It further stated that pardoning of a sentence in no way interfered with the order of the court and affected only the execution of the sentence.

In the case of K. M. Nanawati v. State of Bombay[6] and Mohinder Singh v. State of Punjab[7], the apex court reiterated the established ruled of non-interference of judiciary with the President’s power to grant pardon as it came entirely under the ambit of executive functions.

Next, came the case of Maru Ram v UOI[8] which is considered to be a landmark judgement of the Supreme Court in the field of law of pardon as it gave directions for the use of the pardon power within specified limits and curbed its absoluteness. Before this judgement, the Supreme Court asserted that the judiciary shall not intervene in the matters dealing with the power to grant pardon conferred on the President and the State Governors and upheld the doctrine of separation of powers. One of the most significant aspects of this judgement was the initiation of judicial review of pardoning powers.[9] The court in this case stated that giving pardon the widest possible interpretation hampers fair exercise of this power as Political feud and party partisanship infiltrates. For example, if the Chief Minister of a State releases everyone in the prisons in his State on his birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness survive.[10] It was therefore held by the apex court that the exercise of power under Articles 72 or 161 is left to the appropriate Governments, but under no circumstances can the decision be wholly irrelevant, irrational, discriminatory or malafide.

In 1983, the Supreme Court decided on another important question pertaining to the delay in execution of death sentence.[11] It was held by the court that the death sentence of a person was to be commuted if the mercy petition remains pending for more than two years. However, the case was overruled within a month by the full bench of Supreme court in Sher Singh v. State of Punjab[12].

In another landmark judgement[13], the Supreme Court directly dealt with the pardoning power of the President under Article 72. In this case, an important question regarding the scope of the pardoning power of the President under Article 72(1) of the Constitution came up for consideration of the Hon'ble Supreme Court. First, the Court stated that it can always examine as well as determine the scope of the power to grant pardon. Although in this case the court did not find it adequate to go into the question of determining the scope of the power and deferred it to future. Second, it said that the power under Article 72 is subject to scrutiny. As a matter of fact in this case the Court also scrutinised the exercise this power and came to a conclusion that the President by refusing to commute the sentence of death imposed upon the petitioner. The power under Article 72 can be used only for the purpose of reducing the sentence, not for enhancing it. e. The court neither issued any orders for the framing of the guidelines to the Government nor did it frame the guidelines itself.[14]

After the significant cases of Maru Ram and Ranga Billa, came another landmark judgement in 1988 i.e. Kehar Singh v. Union of India[15]. In this case a mercy petition was filed by Kehar Singh to the President under Article 72 of the Indian Constitution in relation to the assassination of the then Prime Minister of India, Smt. Indira Gandhi. Several fundamental and critical issues with respect to President’s pardoning power were dealt with by the Constitutional Bench of the Supreme Court. The very first question raised was whether the President can dwell upon the merits of the case while considering a mercy petition, notwithstanding the findings of the Supreme Court. The Court answered this question in affirmative and stated that the President can always go into the merits of the case and has been granted the power to examine the evidence pertaining to the case and reach to a different conclusion from that of the Court. The next question dealt with the scope of the judicial review of an order passed by the President. The court held that the orders of the president can be subjected to and challenged through judicial review with very strict limitations laid in the case of Maru ram and not on its merit.[16]

Next, in another notable case referred to as Gyassi Ram’s case[17], the court once again interfered in a matter that was in possession of the President of India. The court held that although the pardoning power is a prerogative of the President but in exceptional circumstances the court has the liberty to interfere. The question that the Supreme Court had to answer was that in view of the previous judgments in T.N. Vatheeswaran and Sher Singh, whether the death sentence awarded to Gyasi Ram would be commuted due to the long delay in his execution. After closely examining the intricacies of the case in hand, the court concluded that the petitioner has every right to approach the Court under Article 32 of the Indian Constitution in cases where there has been an undue delay in the execution of death sentence. While on one hand the Court ruled that a fixed period to award death sentence cannot be considered despite speedy trial being implicit in the broad sweep and content of Article 21 , on the other hand, the Court accepted that in this case there is no proper justification for keeping the mercy petition of the convicts pending for such a long time.[18] Thus, the court changed the punishment imposed on Gyasi Ram from death penalty to life imprisonment.

Next, in the case of Ashok Kumar v Union of India[19], the apex court thoroughly investigated the judgments in the cases of Maru Ram and Kehar Singh so as to find out the need for formulating guidelines for the exercise of the pardoning power. The court said that the recommendations of the Constitution Bench in the case of Maru Ram was an obiter and did not have a binding effect in case of Kehar. Therefore, on the basis of this observation by the court, no guidelines for the exercise of the power to grant pardons were worked out.

Another judgement in line with T.V. Vatheeswaran was Devender Pal Singh Bhullar v. State of NCT of Delhi[20]. Here, the court clearly elaborated that in case of an undue, unexplained and inordinate delay in execution due to pending of mercy petitions or failure on the part of executive and constitutional authorities to take note of the relevant aspects, the Court has the liberty to take note of the necessary aspects and hear the grievance of the convict and commute the death sentence into life imprisonment under Article 32 of the Constitution provided that the delay was not caused due to the accused himself. The court, however, held that when an accused is convicted under TADA, his/her sentence cannot be commuted on compassionate grounds and there is no question of showing any sympathy or considering supervening circumstances for commutation of sentence.[21]

However, this was turned down in another case[22] where the apex court found no proper justification for excluding TADA cases from commutation or relief on account delay in execution of death sentence. It further held that irrespective of the case being a TADA case, the only aspect that needs to be satisfied is unreasonability in delay at the hands of the executive. The argument that there exists a distinction between IPC and non-IPC offences with respect to granting pardon as the nature of offences are different was also negated by the court.

In 1997, Another interesting question came up before the honourable court regarding the extent of judicial review by the Court on the President’s power to grant pardon in the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat[23]. It was held by the court that the judicial review of pardoning power does not allow the court to sit as a court of appeal but merely enables it to review the manner in which the decision was made by the President. It further explained that judicial review doesn’t allow the judge’s discretion to take over the executive’s discretion but allows the judiciary to only raise certain questions of legality. First, did the authority exceed its powers and committed an error of law. Second, was there a breach of rules and norms of natural justice and did the authority came to a conclusion that no reasonable tribunal would have reached. Third, was there any abuse of power by the concerned authority.

Another landmark judgement pronounced by the Supreme Court is Epuru Sudhakar v. Government of Andhra Pradesh[24]. This case dealt with almost all the issues pertaining to the Pardoning power of the President on the basis of judgements passed in England, United States and India. The court contended that the exercise of pardoning power of the President is not immune from Judicial review and laid down the grounds on which the pardoning power of the President can be judicially reviewed. The court held that in the absence of the following grounds, the court will not have the power to judicially review President’s decision. First, where the order is malafide and has been passed as extraneous or wholly irrelevant considerations. Second, where relevant materials have been kept out of consideration and order has been passed without application of mind. Third, where the order suffers from arbitrariness. Thus, with this case, it became clear that the President’s pardoning power can be subjected to judicial review.

As per the Indian Constitution, while Article 72 on one hand empowers the President of India to grant pardon, Article 74 on the other hand, contains that the President has to act in accordance with the aid and advice of the council of ministers. Thus, on closely examining the abovementioned Articles, an important and interesting question that arises is whether the President is bound to act in accordance with the view of the council of ministers or whether he has the liberty to exercise his discretion independently without the aid and advice of the Cabinet.

It was Samsher Singh v. State of Punjab[25], where the Supreme Court held that the satisfaction of President or Governor not only deals with their personal satisfaction but it takes into account the satisfaction of the Council of Ministers upon whose aid and advice the President has to exercise his power.

This judgement was further applied in the Maru Ram case where the honourable court contended that the decision to grant pardon to an individual is a collective decision of the council of ministers and President and the President cannot take the decision independently.

Thus, one can clearly see that the unrestrained nature of the pardoning power in other jurisdictions could hardly survive in the democratic system of India. Over a period of time, it became diluted when the Supreme Court of India conclusively established that the power of pardon is subject to judicial scrutiny.[26] . The court also had the desire that the government shall frame some rules or guidelines for the exercise of this precious power but at the same time it did not ask the government to do so and moreover the court itself refrained from framing the guidelines.[27]

India has witnessed a remarkable evolution of the scope of President’s pardoning power. It was the judiciary that recognised the harmful consequences of giving such power to the President without any checks and balances and hence, through various judgements have interpreted it to be subjected to Judicial review, thus taking away the unbridled power from the executive.

References [1] Devesh Saraswat, Pardoning Power of the President in India: A Judicial Approach, 7 SRF 94, 96-97 (2018). [2] AIR 1954 Mad. 911. [3] AIR 1956 SC 142. [4] Sarat Chandra Rabha v. Khagendra Nath, 1961 AIR 334, 1961 SCR (2)133. [5] Parul Kumar, The Executive Power to Pardon: Dilemmas of the Constitutional Discourse, 2 NUJS L. Rev. 10, 15-27 (2009). [6] AIR 1962 SC 605. [7] AIR 1965 SC 79, 1965 CriLJ 112. [8] 1980 AIR 2147, 1981 SCR (1) 1196. [9] SANDEEP KUMAR, A CRITICAL STUDY OF THE PARDONING POWER IN INDIA, 330-402 (Himachal Pradesh University, 2011). [10] J.P. Rai, Exercise of Pardoning Power in India: Emerging Challenges, 7 NEHU 2, 5-23 (2014). [11] T. V. Vatheeswaran v. State of Tamil Nadu, 1983 AIR 361, 1983 SCR (2) 348. [12] 1983 AIR 465, 1983 SCR (2) 582. [13] Kuljeet Singh v. Union of India, AIR 1981 SC 1572. [14] SANDEEP KUMAR, A CRITICAL STUDY OF THE PARDONING POWER IN INDIA, 330-402 (Himachal Pradesh University, 2011). [15] supra note 14. [16] Nujscls, The Scope of Presidential Pardon in Light of Judicial Review in India, CONSTITUTION LAW SOCIETY, NUJS (December 13, 2018, 10:51 AM), [17] Madhu Mehta v. Union of India, (1989) 3 SCR 774 : AIR 1989 SC 2299. [18] supra note 14. [19] 1991 Cri. L.J. 2483 (SC). [20] (2013) INSC 424. [21] Ekta Bharati & Niharika Salar, President’s Power to Pardon, 2 JCIL (2016). [22] Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1. [23] AIR 1997 SC 3400. [24] AIR 2006 SC 3385. [25] 1974 AIR 2192, 1975 SCR(1) 814. [26] supra note 14. [27] supra note 14.


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