PRESIDENTIAL PARDON:

CAN IT BE SUBJECTED TO JUDICIAL SCRUTINY?

. The prince pleads that punishment should be light even for

grave offences, that when the sentence of death is carried out in the
case of robbers, several innocent persons (such as the wife, the
mother, the son of the condemned man) suffer great loss (and they
may die also), that if offenders give themselves up to priests, swear
before them that they will never commit sin, they may be let off after
undergoing penance, and that if great men go astray the punishment
should be proportionate to their greatness.1

The policy of taking a sympathetic view as regards persons found guilty of

offences and punished with imprisonment, by giving them remission and letting
them off before they completed the period of imprisonment imposed on them, has
been a recognized practice in India. India has always been a peace loving country
and such practices only go on to further this tradition. But it seems that like

Part of dialogue between King Dyumatsena and his son, Prince Satyavat, referred to in Santiparva Ch.
268.

everything else in our country, we had even forgotten this too and had to take it
from the British.

Article 72 of The Constitution of India confers upon the president the power to
grant pardons, etc. and to suspend, remit or commute sentences. But recently this
power has come into great controversies owing to the increasing application for
the use of such power and also the increasing influence of the judiciary in the
matters of such applications.
Whether this power of the president can be subjected to judicial scrutiny or
judicial review? If yes, than to what extent? And if no, than wouldnt such a power
lead to arbitrariness and violate the principles of natural justice? These are some of
the question which would be dealt with in the given essay with a reflection also
from the history of such a power.

Some reflections of the origin.

The origin of power to grant pardon in criminal maters can be traced back to
Athenian times of 400 B.C. wherein it was very difficult 2 get a pardon as this
power rested with the people and not the monarch. It was around 6000 people who
had to give their accent through secret voting to any person who desired to obtain
pardon. And such a thing rarely happened except for the celebrities.

Such an institution also existed under the Roman law, but here it was used very
judiciously for their political motives. And maybe, it is here that the practice of
actually using this power for political gains started, which continues to exist even
today. This tendency to use the clemency power for reasons unrelated to justice
eventually found its way into the law of England. This was basically done to
strengthen the position of the monarch among the common masses and to generate
a sense of loyalty in them towards the crown.
But in the year 1535, with the crowing of Henry VIII, the parliament was forced to
bring in an Act committing to the king "the whole and sole power and authority" to
pardon or remit treasons, murders, manslaughters, felonies, or outlawries. 2 But in
1678 when Charles II granted pardon to the Treasurer Osborne during his
impeachment, the parliament thought it apt to limit the power of clemency as
vested in the crown. And therefore, The Habeas Corpus Act of 16793, the 1689
Bill of Rights4 and 1700 Act of Settlement5 were passed to control the clemency
power of the crown. Finally, in 1721, Parliament gained the power to pardon by
legislative act.6
With the passing of the Government of India Act, 1935 the governor-general was
vested with similar powers of pardoning. The section 295 of the said Act provided

G. Elton, Reform & Reformation: England, 1509-1558, at 201-02 (1977) (describing the consolidation of
the clemency power, as well as the enforcement of all writs, in the king, which brought additional profits to
Henry VIII).
3
Habeus Corpus Act, 1679, 31 Car. 2, ch. 2, 11.
4
Bill of Rights, 1689, W. & M., ch. 2, 2.
5
See 13 H.C. Jour. 624 (1701); 16 H.L. Jour. 737 (1701).
6
See Act of Settlement, 1721, 7 Geo. 1, ch. 29;

for providing the governor-general with all powers of suspension, remission or

commutation.
And it is after this provision of the Government of India Act, 1935, that the
pardoning power of the president was introduced in the Constitution of India in
Article 72. The constitution also confers a similar power on the governor of states
under Article 161 of the Constitution of India, though there was no such provision
in the Government of India Act, 1935.

Judicial scrutiny: relevancy unquestioned.

The Article 72 confers power to grant pardons, reprieves, respites or remissions of

punishment or to suspend, remit or commute sentences in cases of court martial.
Death penalty and in all the matters over which the centre has its jurisdiction.
A pardon in our days is not a private act of grace from an
individual happening to possess power. It is a part of the
constitutional scheme. When granted, it is the determination of the
ultimate authority that the public welfare will be better served by
inflicting less than what the judgment fixed. 7
These lines by Justice Holmes of US Supreme Court felicitously enunciate the
rationale of the pardoning power. When a head of the state decides to impart a
7

Biddle v. Perovich 71 L. Ed. 1161 at 1163

pardon, remission or commutation of sentence of a convict, it should be because

he finds the decision to be in favour of the general public and for their betterment.
A pardon is granted on the theory that the convict has seen the error of his ways,
that society will gain nothing by his further confinement and that he will conduct
himself in the future as an upright, law-abiding citizen.
The three pillars of the Indian government viz. the executive, the judiciary and the
legislature are conferred powers by the Constitution of India so as to keep an eye
on the working of each other through the system of check and balance. This
system of check and balance does not include interference with the powers of each
other. But it is meant to keep each within its constitutional limitations and to not to
exceed the authority granted by it.
The Indian judiciary is independent in its working from the executive and the
legislature and acts as a safeguard to the constitution of India. Its main goal is to
provide justice to the aggrieved and to protect them from any unjust executive
action.
The presidents power to grant pardon is also such a power which can be abused
by the virtue of only one reason: it is absolute. And we all know that power has a
tendency to corrupt and the also that absolute power corrupts absolutely. As a
natural principle of the Indian Constitution the judiciary has the right as well as the
moral duty to keep a check on such an executive action.

The president of India has to work with the aid and advice of the council of
ministers in all its functions and powers. The president is bound to follow the
advice given by the council of ministers. This provision of the Constitution of
India puts a big question mark on the presidents power to grant pardon also. How
can it be expected that such an advice will not be influenced by the political
ambitions and motives of the ruling party? And, that in the present era of coalition
governments being formed, there will be no abuse of this absolute power to gain
political benefits? It is at this stage that the necessity of judicial review is felt in
regards to even the presidential power to grant pardon under Article 72 of the
constitution of India.
Also the president, in order to arrive at any such decision of granting pardon takes
the help of material which is supplied to him. The decision to which he has arrived
also depends a lot on these materials. Thus it becomes necessary for the judiciary
to keep an eye also on these provided materials as any change in the original one
or not providing any important document or relevant material ca lead to a wrong
decision by the president. Any pardon which has been received on the basis of
wrong or incomplete material information would be a gross injustice to the society
at large and also to the people who have been aggrieved by any such acquitted
person. Such a miscarriage of justice can not be allowed by the Judiciary. Hence
the judiciary has a bounden duty to check if all the relevant and material facts have
been placed before the president and in the truest form. And it can only be

assessed by reviewing the decision which has been passed by the president. The
pardon so granted on the basis of fraud or misrepresentation is ipso facto void and
ceases to he in existence. It is a general rule, that, wherever it may reasonably be
presumed the king is deceived, the pardon is void. 8 But to bring such a principle
into play, it must be found to be so misrepresented. And that is where the judiciary
comes into play.
The pardoning power of the president is not in appeal to the decision of the
Supreme Court or any other court for that matter. It exists as an independent
function of the president and is therefore not bound to take up or consider the
reasoning of the Supreme Court while arriving at any decision of granting or
refuting the application for pardon. The president can apply his own reasoning
keeping in mind the present social scenario and the impact of the decision on the
common public. Any such reasoning by the president should be in the common
interest of the general public. Any decision which is not taken reasonably can
initiate a wave of anger and dissatisfaction in the people which is harmful for the
interest of the entire nation. And hence the judiciary has to mediate to prevent any
such happening. In the case of Dhananjoy Chatterjee hanging, when an
application was sent to the president for pardon, there were widespread protests
against any such pardon. And if in that situation, pardon would have been granted
than the public agitation would have been uncontrollable. And also, it would have
8

William Blackstone, Commentaries 4:397402, Article 2, section 2, clause 1.

sent a wrong message to the criminals who consider it there every day job to rape
and murder. But the wise and prudent decision of the president saved any such
happening.
The pardon granted by the president absolves the convict from all his liabilities
and brings him to such a position as if he had never committed any such crime.
This marks a whole new life for the convicted person. Such a pardon can be
without any conditions or with strings attached. These strings play a very
important role in the pardoning of the convict. So the conditions which are
attached to the pardon must be such that can actually reform the so pardoned or at
least relieve the party which have been aggrieved by his misconduct. Thus, the
judiciary also has a duty to see if the attached strings are not contrary to the
constitution of India or any other natural law for the people. If the conditions
which have been attached to any granting of pardon are violative of the natural law
of the land and also principles of natural justice, the judicial review has to be
availed of to restore the previous position and quash any such condition.

Another aspect of the pardoning power is the humanitarian aspect which should be
kept in mind by the president while granting the pardon for any offence. The
president has the power to grant pardon in any case where death penalty has been
awarded. In India capital punishment is given in rarest of the rare cases. These are
those cases where the offence committed is of the most gruesome and violent
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nature and because of which the family of the victims have suffered an irreparable
damage. In these cases if pardon is granted than, it will be injustice towards the
aggrieved family and would cause great resentment towards the judicial system in
them. And in such a case even if their can be no judicial review of the decision
passed by an executive authority than it would be violative of the principles of
natural justice in the largest democracy of the world.
But besides all these provisions and reasoning there are still some restrictions on
the way of judicial interpretation of the decision of the president in the matters of
granting pardon. These pose a considerable amount of hindrance in subjecting
these decisions to judicial review.
One such thing is the problem of standing. Who shall file the case in the court
even if judicial review of he cases is allowed, is a very relevant question. In case
of offences against private persons the cases can be filed by the aggrieved party
only. But what will be the situation incase of offences against the state? Will it be
the state to pursue the case again? Wont it incur a lot more burden on the already
overburdened state? In the present times the crime rate is on a steady increase. And
if the previously decided cases come again for review and that too under the
constitutional provisions, would it not be a waste of time and money?
Another thing which saves the pardoning power of the president from judicial
scrutiny is the doctrine of separation of powers. The constitution of India has
expressly provided for the different powers for all the three sections or pillars of

the government viz. the legislature, the executive and the Judiciary. Though the
constitution also provides for a system of check and balance between these three,
but there should be a demarcating line to it. But in this regards the Honble
Supreme Court of India has expressly said that the question as to the area of the
President's power under Article 72 falls squarely within the judicial domain and
can be examined by the court by way of judicial review9

Points to ponder and conclusion

Soli Sorabjee, who acted as an amicus curiae in the Supreme Court in the case of
Epuru Sudhakar and Anr. Vs. Govt. of A.P. and Ors,10 gave a very viable
suggestion relating to the desirability of indicating reasons in the order granting
pardon/remission. He was of the opinion that the particular reasons regarding
decision of pardon should be given in the absence of which the power of judicial
review shall be affected. But the Court was of the opinion that there is no question
of asking for reasons for the decision of the president as he is under no obligation
to do so. But at the same time the court also said that any such absence of
obligation to give reasons does not mean that there should not be legitimate
reasons for passing the same. But it must be noted that giving of reasons would
help the judiciary as well as the concerned parties in understanding the reason
behind the granting or refuting of the pardon, as the case may be. This would also
9

Kehar Singh and Anr. v. Union of India AIR 1989 SC 653.

10

AIR 2006 SC 3385

10

be helpful in deciding if the thinking which has been applied by the president in
giving its decision is that of a reasonable and prudent man, who would have acted
in the similar manner had he been given the same power of the president. Such a
reasonable thinking is required on behalf of the person who has the most important
power of the land as a matter of right. He, who is given such power should not act
contrary to the volk giest and should apply the most sound reasoning and logic to
use this power.
In United States of America, there is an expressed provision in the Constitution to
stop the president from misusing the power and that is by impeachment. It acts as
a deterrent, for the President to avoid acting in an unreasonable manner. But there
is no such direct provision in India. This is even justified, as the president acts on
the aid and advice of the council of ministers. According to the Constitution of
India he is bound to follow their advice. And when he follows it, it is very much
reasonable but no government can impeach the president for following its own
advice. So there can practically be only two ways of controlling the misuse of this
power: either after each five years or through judicial scrutiny. And as a normal
common and prudent person, I would go for the second one, for the obvious
reasons. After all, liberty and equality is everybodys right, and no one can be
deprived of them, except according to the procedure established by law.

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On a more humanitarian note:

I know not whether Laws be right,
or whether Laws be wrong,
all that we know who lie in gaol
Is that the wall is strong;
And that each day is like a year.
A year whose days are long.

These lines by Oscar Wilde were written when he was in jail and a very rare thing
occurred: a hanging. These lines very successfully bring out the feelings of the
person who has been awarded a death penalty and has lost the most important
thing: Hope.
Article 72 of the constitution of India brings back this ray of hope to the people in
the sense that the first time offenders have a chance of starting life a fresh. But
such a prerogative should be used with the widest reasoning and logic. Than only,
the promises of going for miles can be fulfilled.

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BIBLIOGRAPHY
1. Maru Ram and Ors. v. Union of India (UOI) and Ors; AIR 1980 SC 2147
2. Kehar Singh and Anr. v. Union of India; AIR 1989 SC 653.
3. Epuru Sudhakar and Anr. v. Govt. of A.P. and Ors. AIR 2006 SC 3385
4. Basu, D. D., Shorter Constitution of India, Wadhwa & Co. Law Publishers,
13th Edition.
5. Constituent Assembly Debates Vol. IV, Thursday, the 31st July 1947.
6. Blackstone, William; Commentaries 4:397402; Document 17.
7. Kobil, Daniel T.; The Quality of Mercy Strained: Wresting the Pardoning
Power from the King; 69 Tex.L.Rev. 569 (1991);
8. Krent, Harold J.; Conditioning the Presidents Conditional Pardoning
Power, 89 Cal. L. Rev. 1665.

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