PARDONING POWER OF THE PRESIDENT OF INDIA

RESEARCH PAPER SUBMITTED IN PARTIAL FULFILLMENT OF COURSE CONSTITUTIONAL LAW- II For

ATTAINING THE DEGREE OF B.A. LL.B. (Hons.)

PROPOSAL SUBMITTED BY:

Aditya Bhardwaj
Course: B.A. LL.B. (Hons.)
Roll No: 1705

PROPOSAL SUBMITTED TO:

Prof. Dr. Anirudh Prasad
Faculty of “CONSTITUTIONAL LAW- II”

CHANAKYA NATIONAL LAW UNIVERSITY NYAYA NAGAR,

MITHAPUR, PATNA – 800001

January, 2020
 ACKNOWLEDGMENT
I would like to thanks my faculty Prof. Dr. Anirudh Prasad whose guidance helped me a
lot with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn’t have completed it in the
present way.

I would also like to extend my gratitude to my parents and all those unseen hands that
helped me out at every stage of my project.

THANK YOU,
Name: Aditya Bhardwaj
B.A. LL.B.
6 th sem
ROLL NO: 1705

2
 DECLARATION
I Aditya Bhardwaj student of B.A. LL.B. (3rd year) in Chanakya National Law University
declare that the research project entitled “PARDONING POWER OF THE PRESIDENT
OF INDIA” submitted by me for the fulfilment of Constitutional law-ii course is my own
work. This project has not been submitted for any other Degree / Certificate / Course in any
Institution / University.

3
 CONTENTS
Page No.
Chapter 1
• Introduction 05
• Statement of Problem 06
• Provisions in the Constitution 07
• Research Methodology 09
Chapter 2
• Origin & History 11
• Constitutional Plan 16
• Philosophical Background 17
• Justification 19
Chapter 3
• Difference 21
• Contemporary Practice 22
• Judicial Review 25
• Separation of Powers 27
• Important Cases & Opinion of Judges 28
• Pardoning: Power or Function 32
Chapter 4
• Guidelines 34
• Global Scenario 35
• Conclusion 36
• Bibliography 38

4
 Chapter 1

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

“I cannot accept your canon that we are to judge Pope and King unlike other men, with a
favourable presumption that they do no wrong. If there is any presumption it is the other way,
against the holders of power, increasing as the power increases”.1

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

1
Lord Acton(Quoted by Justice V.R.Krishna Iyer in Maru Ram v. Union of India)

5
contemporary debates have dealt with the validity of retributive laws especially the magnitude of
those awarding harsh punishments. Thus in the present scenario it has become an utmost need.

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

“Judges must enforce the laws, whatever they be, and decide according to the best of their
Lights; but the laws are not always just and the lights are not always luminous. Nor, again
are Judicial methods always adequate to secure Justice. The Power of pardon exists to
prevent injustice whether from harsh, unjust laws or from judgments which result in
injustice; hence the necessity of vesting that power in an authority other than the judiciary
has always been recognized.”2

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

Statement of Problem
The Constitution of India is substantially silent about the guidelines the President and the
Governor ought to follow in the exercise of the Power of Pardon. This power is provided to them
as per Article 72 and 161 respectively. Now the Council of Ministers renders aid and advice to

2
H.M.Seervai, Constitutional law of India, 4th edition, Page 2004

6
the President as per Article 74(1) but not as per the above mentioned Articles which actually talk
about the pardoning power. Moreover it is clearly mentioned that the Council of Ministers can
only undertake this activity of aiding and advising the President only in the performance of his
‘FUNCTIONS’ and ‘NOT POWERS’. But unfortunately, in contemporary practice the Council
of Ministers has always interrupted in the President’s job whenever they got an opportunity to
play the role of a pardoning authority and subsequently always try to satisfy their own whims,
fancies and interests. These interests often gain priority over public and societal interests.This
mal practice has mainly evolved due to judicial interpretation whereas the Constitution of India
does not authenticate it any way.

So, if pardoning is a function then the President ought to take advice from the Ministers and be
bound by it. And if it is a power as the name very well suggests, then he must have full discretion
in the exercising of this power.

So, neither the President should be bound by the advice of the Ministers, nor there should be full
discretion to him as it can lead to arbitrariness and misuse.

We therefore need to adopt a middle way whereby the pardoning authority ought to keep certain
predefined and prescribed guidelines in mind while exercising this power. This definitely does
not include him being bound by the advice rendered by the ministers.

This way, there would neither be full curtailment of the President’s power nor there would be
complete freedom and authority given to him as both have their ill effects.

Provisions in the constitution

The power of pardon has been conferred upon the President and the Governor through Articles
72 and 161 of the Constitution respectively.

Art. 72 reads as follows: Power of President to grant pardons, etc., and to suspend, remit or
commute sentences in certain cases:

7
1. The President shall have the power to grant pardons, reprieves, or remissions of punishment or
suspend, or remit or commute the sentence of any person convicted of any offence

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

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

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

2. Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer
of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a court
martial.

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

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

Although the Power of Pardon in England and the United States is deemed to include the powers
of remission, reprieves and suspension, the Constitution of India specifically confers these latter
powers upon the President.3

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

Power of Governor to grant pardon etc., and to suspend, remit, or commute sentences in certain
cases: "The Governor of a State shall have the power to grant pardons, reprieves, respites or
remission of punishment or to suspend, remit or commute the sentence of any person convicted
of any offence against any law relating to a matter to which the Executive power of the State
extends."

Terminologies explained :

o Pardon – Release of punishment prescribed for the offender and the guilt of the offender.
Restores all social rights. It is an act of grace though within the limits of the Constitution.
A pardon may be both, absolute or conditional. A pardon is conditional where it does not
become operative until the grantee has performed some specified act, re where it becomes
void when some specified event happens.

3
Rohan Sahai, Limits of the Pardoning Power under Indian Constitution,
http://www.nujslawreview.org/articles2009vol2no2/rohan-sahai.pdf, accessed on 25th Feb, 2010.

8
 In English Law, “the effect of pardon under the Great Seal is to clear the person from all
infamy and from all consequences of the offence for which it is granted and from all
statutory or other disqualifications following upon conviction”4

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

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

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

pardon or commutation.

Research Methodology
CONCEPTUAL FRAMEWORK AND METHODOLOGY

The paper undertakes an analytical and investigative research methodology, which is a method of
inquiry appropriated in many different academic disciplines. Qualitative research aims to gather
an in-depth understanding of the subject, it investigates the why and how of decision making, not
just what, where, when.

Comparative approach has been taken since there has been comparison of pardoning power in
foreign countries like USA and UK and also comparison of pardoning power between President
and Governor.

Also a biased, subjective view has been taken in the project by assuming the fact that the
pardoning power of the President is misused and researchers have suggested some guidelines for
its exercise as the only remedy to solve this problem.

OBJECTIVES OF THE STUDY

With the locale delineated above, this study has the following main objectives:

1) To understand the meanings of Article 72 and Article 161 and examine any differences
conveyed prima facie.

4
Halsbury’s laws of England(Halisham), 2nd edition., p.479

9
 2) To examine the difference between power and function and to which category does
pardoning belong to?

3) To check if pardoning power violates the doctrine of “Separation of Powers”.

4) To understand the reviewability of pardoning power after clemency has been granted.

5) To examine the contemporary practices in power of pardon and the issues arising out of
it.

6) To suggest certain guidelines to assure a degree of certainty and proper implementation.

7) To examine the opinion of Judiciary regarding specification of guidelines for pardoning.

OBJECT

The aim and object of this paper is to understand the pardoning power given to the President and
Governor under Article 72 & 161, examine the misuse of this power in the past and further
loopholes in it which can be misused. Therefore there is the need of guidelines for its use.

SCOPE AND LIMITATION

The work is primarily grounded on secondary sources with certain references to primary sources.
There has been reference to books and Articles with some references made to cases and their
judgements. The research is confined within the scope of provisions as written in the
Constitution under Article 72 and 161 and some other statutory provisions applicable within the
territory of India. There have been mild references to provisions in USA and UK.

RESEARCH QUESTIONS

➢ What is the difference between Art. 72 and 161 ?

➢ Is pardoning a power or a function?

➢ Does pardoning power violate theory of Separation of Powers?

➢ Why is Judicial Review exercised on the power of pardon?

➢ Is there a need for some set guidelines for the exercise?

10
 Chapter 2

Origin and History of Power of Pardon

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

In the medieval period when India was under the British rule, traces of pardoning power could
be found in Government of India Act,1935. The Section 295 of Govt. of India Act, 1935 which
was corresponding to Article 72 provides that

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

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

11
There was no provision in the Government of India Act 1935 corresponding to Article 161 of
the Constitution. The above Constitutional provisions were debated in the Constituent Assembly
on 29th December 1948 and 17th September 19495. The grounds and principles on which these
powers should be exercised were not discussed nor debated6.

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

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

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

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

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

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

5
Constituent Assembly Debates, Vol.7, pages 1118-1120 and Vol. 10
6
Dr. Subhash C Kashyap, Framing of India’s Constitution : A Study, 2nd Edition, page no 367-371, page 397-399

12
 Provided that in the case of any sentence (other than a sentence of fine) passed on a male
person above the age of eight years, no such petition by the person sentenced or by any other
person on his behalf shall be entertained, unless the person sentenced is in jail, and,
(a) Where such petition is made by the person sentenced, it is presented through the officer in
charge of the jail; or

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

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

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

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

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

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

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

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

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

13
 (d) A sentence of simple imprisonment, for fine.

Section 433A7 lays down restrictions on provisions of remission or commutation in certain cases.
It provides that “Notwithstanding anything contained in Section 432, where a sentence of
imprisonment for life is imposed on conviction of a person for an offence for which death is one
of the punishment provided by laws or where a sentence of death imposed on a person has been
commuted under Section 433 into one of imprisonment for life, such person shall not be released
from prison unless he had served at least fourteen years of imprisonment.”

Section 434 confers concurrent power on the central government in case of death sentence. It
states that “The powers conferred by Sections 432 and 433 upon the State Government may, in
the case of sentences of death, also be exercised by the Central Government.”

Section 435 of CrPc provides that

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

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

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

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

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

Government in relation to a person, who has been convicted of offences, some of which relate to

7
Ins. by Act 45 of 1978, Sec. 32 (w.e.f. 18-12-1978).

14
matters to which the executive power of the Union extends, and who has been sentenced to
separate terms of imprisonment which arc to run concurrently, shall have effect unless an order
for the suspension, remission or commutation, as the case may be, of such sentences has also
been made by the Central Government in relation to the offences committed by such person with
regard to matters to which the executive power of the Union extends.

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

Apart from CrPc, IPC Sections 548 i.e. “ In every case in which sentence of death shall have
been passed, [the appropriate Government] may, without the consent of the offender, commute
the punishment for any other punishment provided by this code” and IPC Section 55 i.e. “ In
every case in which sentence of 9[imprisonment] for life shall have been passed, 10
[the
appropriate Government] may, without the consent of the offender, commute the punishment for
imprisonment of either description for a term not exceeding fourteen years.” of the IPC confer
power on the appropriate government to commute sentence of death or sentence of imprisonment
for life as provided therein.

8
Subs. by the A.O. 1950, for "the Central Government or the Provincial Government of the Province within
which the offender shall have been sentenced". The words in italics were subs. by the A.O.1937, for "the
Government of India or the Government of the place.

9
Subs. by Act 26 of 1955, sec.117 and sch., for "Transportation" (w.e.f. 1-1-1956).

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

15
Constitutional plan
As stated before the provision of pardoning power was already in existence while the British
ruled in India; till the independence it derived its validity from Sec 295 of Government of India
Act, 1935 under which the Governor General had power to pardon.

The Constitution drafters had no plan of removing the power of pardon. So they did not have any
intensive debate about it and it was allowed entry into the Constitution with slight modifications.
The drafters retained all kinds of punishment including Capital punishment as they believed that
it could have a deterrent effect and set an example to those who intended to commit crimes in the
future. At the same time they wanted to retain the Power of pardon on grounds of morality,
erroneous judgements, excessive harsh punishments and personal prejudice. So it was necessary
to recheck it. They did not want to assign full power to the judiciary and wanted “checks and
balances” through the executive wing. The power of pardon exists to prevent injustice whether
from harsh or unjust laws or from judgments which result in injustice; hence the necessity of
vesting that power in an authority other than the judiciary has always been recognized.11It has
been a method of implementing “Separation of Powers” so that absolute power in the hands of
the judiciary could be controlled. Since India also was supposed to have division of powers
therefore the Power of pardon was also vested in the State executive i.e. Governor with lesser
powers.12

11
Ex. p Grossman (1924)
12
Subodh S. Patil, Status Of President Under Constitution: Problems And Perspectives,
http://www.indialaws.info/display.aspx?4514, accessed on 27th Feb, 2010.

16
Philosophical Background
The philosophy underlying the Power of Pardon is that “every civilized country recognizes, and
has therefore provided for, the pardoning power to be exercised as an act of grace and humanity
in proper cases. Without such a power of clemency, to be exercised by some department or
functionary of a Government, a country would be most imperfect and deficient in its political
morality, and in that attribute of Deity whose judgments are always tempered with mercy.”13

The fundamental reason or logic behind the pardon power has been felicitously expressed by the
celebrated Justice Holmes of the United States Supreme Court in the case of Biddle v. Perovich14
i.e. “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”. In Kehar Singh v. Union of India15 these observations of Justice Holmes have
been approved.

The classic systematic interpretation or explanation of the law relating to pardon is to be found in
Ex parte Philip Grossman where Chief Justice Taft mentioned “Executive clemency exists to
afford relief from undue harshness or evident mistake in the operation or the enforcement of the
criminal law. 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 ameliorate or avoid particular criminal
judgments.”16. The opinion has been approved in Kuljit Singh v. Lt. Governor of Delhi17

13
59 American Jurisprudence 2d, page 5
14
71 L. Ed. 1161 at 1163
15
1989 (1) SCC 204
16
69 L. Ed. 527
17
1982 (1) SCC 417

17
In Nar Singh v. State of Uttar Pradesh18, the sentence has been remitted in the exercise of this
power on the discovery of a mistake committed by the High Court in disposing of a criminal
appeal.

The legal effect of a pardon is wholly different from a judicial supersession of the original
sentence. In Kehar Singh’s case it was observed that in exercising the power under Article 72
“the President does not amend or modify or supersede the judicial record. And this is so,
notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt
from the accused or to remit the sentence imposed on him”

The administration of justice through courts of law is part of the Constitutional scheme to secure
law and order and the protection of life, liberty and property. Under that scheme, it is for the
judge to pronounce judgment and sentence, and it is for the executive to enforce them. Normally
such enforcement presents no such difficulty; but circumstances may arise where carrying out a
sentence, or setting machinery of justice in motion, might imperil the safety of the realm. Thus, if
the enforcement of the sentence is likely to lead to bloodshed and revolution, the executive might
well pause before exposing the State to such peril.19

Philosophy and necessity for conferring of the power in the hands of the executive was stated in
federalist no. 24 by Hamilton:

“In reasons of insurrection or rebellion, there are often critical moments when a well timed offer
of pardon to the insurgents or rebels may restore the tranquility of the commonwealth and which,
if suffered to pass unimproved, it may never be possible afterwards to recall. (Quoted argument
from Ex p. Garland20)

18
AIR 1954 SC 457
19
H.M.Seervai, Constitutional Law of India, 4th edition, p. 2096
20
(1874) 4 Wal. 333

18
Justification
Historically the Power of Pardon was granted to the monarch or rather the absolute authority in
the kingdom or the empire. Later on the same power was assigned to the President of a country
and Governors of a state by Constitutional provisions i.e. it is after all a Constitutional power.
The Justification for vesting this power in the highest authority of the whole land in the historical
times as well as in the contemporary times is for the following reasons:

a) “It is human to err” i.e. It is the very nature of Human beings to commit errors. No
decision given in a court of law by a judge is free from error and be the correct or
absolute in nature. There is always a room for misjudgment or wrong judgement i.e.
per-incuriam.

b) Certain facts are considered irrelevant in a court of law and cannot be placed in the court
as they are disregarded while an accused tries to prove himself innocent. The evidences
produced may not be valid under the Evidence Act of the land.

c) Sometimes even if facts are produced in a court of law it may not be done in the proper
manner due to inefficiency of lawyer or any awkward circumstances prevalent at the time
of hearing in the court (i.e. it may not be proper to disclose it in the public). Thus if
golden opportunity be missed in the court of law then he should have another opportunity
to prove himself in front of the highest authority of state.

d) It may happen that many other new developments may occur after the sentence has been
passed which may help the accused in proving himself innocent or at least be eligible for
reduction of a sentence. These needs to be reconsidered again even though courts may
turn down such an appeal. Under such circumstances the pardoning power becomes
important.21

e) Sometimes courts and the other instruments through which judgement is delivered is
bound by procedural laws(Criminal Procedure Code, Civil Procedure Code) which they
can never violate or twist to deliver judgements which may be more correct and just. This

21
Kaushal Shroff, Presidential Pardon : A legal, historical and Political perspective,
http://www.legalserviceindia.com/article/l370-Presidential-Pardon.html, accessed on 26th Feb, 2010.

19
 can be remedied by some extra-judicial procedures like vesting a checking authority in
the hands of the highest authority in the state.

f) Also an eye for an eye can always never be the strategy to give a punishment. It may
even be more grievous and inexpiable if after a harsh punishment be executed then it
come to the knowledge that he did not deserve such a harsh punishment. Then the
punishment can never undo the harm suffered.

g) Also Justice and humanity demands mercy at certain instances and adhering to the
strictest norms of punishment may not set a very good example to the rest of the subjects
in the society. Sometimes relief is expected while delivering judgement. It instills faith
and trust in the people about their Government or their rulers. Mercy is always
considered as a great virtue.

h) But one thing that should be considered while granting pardons is that it should granted
considering public welfare and rule of law.

These points according to the researcher are the justifications for assigning the Power of
Pardon in the hands of the President.

20
 CHAPTER 3

Difference
By plain reading of Art. 72 we find that 72(1) talks about the extent and the circumstances in
which President can grant pardon. 72(2) states that President’s pardoning power under Art.
72(1)(a) does not fetter the power vested in any officer of the Armed forces who can suspend,
remit or commute a sentence passed by a court martial.22 72(3) states that President’s pardoning
power under Art. 72(1)(c) does not fetter the power vested in any Governor of a state to suspend,
remit or commute the sentence of death under any statutory provision.

Article 161 only speaks about the extent and the circumstances in which Governor can grant
pardon.

Thus we can easily compare and differentiate between the pardoning power of President and
Governor by going through Article 72 and 161. They are as follows:

a) The President has executive power to grant pardon in cases, where the sentence is a
sentence of death while the Governor cannot grant pardon in case of a death sentence.
b) The President can pardon punishment or sentences inflicted by Court Martial. Governors
cannot.
c) In respect of suspension, remission and commutation of sentence of death both have
concurrent powers.
d) The President’s power extends to pardoning offences against laws enacted by Parliament
in respect of matters in List I, Schedule 7, and the Governor’s power extends to
pardoning offences against laws enacted by State Legislature in respect of matters in List
II, Schedule 7. The power of the President and the Governors extends also to pardoning
offences in respect of matters in List III, but subject to the limitation on Union executive

22
E.g. S.117, Air Force Act; S.179, Army Act, 1950

21
 power contained in Article 73 (1) (a), proviso and State executive power under Article
162 proviso respectively.23

H.M.Seervai, in his book24, has stated that the provision Article 72(1)(c) read along with Article
72(3) has raised a question whether the Governors of States also have a power to pardon a
sentence of death. A sentence of death may be inflicted for offences against laws made in respect
of matters in Lists I, II, III. But if Art 72(1)(b) is read then we find that the President would have
no power to pardon a sentence of death passed for an offence against a law made in respect of
matters in List II. As it was intended that he should have a power to pardon a sentence of death
inflicted under any law in force in India, it became necessary to make an express provision
omitting all references to the executive authority of the Union. But when the Governor exercises
a Constitutional, not a statutory power, his authority is derived from Art. 161 and it enables him
to pardon all offences against all laws relating to a matter to which the legislative authority of the
state extends. As the Penal Code and the matters contained therein are a subject of concurrent
legislation and as the Penal Code is the general law of crimes in India and provides for sentences
of death, it is clear that the Governor’s power of pardon under Art. 161 extends to pardoning a
sentence of death.25

Contemporary Practice
The contemporary practice in present scenario is that Council of Minister governs and dictates all
terms of pardoning power exercised by the executives. The Hon’ble Court in the case of Maru
Ram v. Union of India26 ruled that the President and the Governors in discharging the functions
under Article 72 and Article 161 respectively must act not on their own judgment but in
accordance with the aid and advice of the Ministers. Article 74(1) of Indian Constitution
provides that:

23
Dr. A. Krishna Kumari, Capital Punishment And Statutory Frame Work In India,
http://works.bepress.com/cgi/viewcontent.cgi?article=1008&context=krishnaareti, accessed on 27th Feb, 2010
24
H.M.Seervai, Constitutional Law of India, 4th edition, p. 2101
25
id. pp. 2102
26
1981 (1) SCC 107

22
There shall be a Council of Minster with Prime Minster at the head to aid and advise the
President who shall, in the exercise of his functions, act in accordance with such advice27. Thus
the pardoning power is being used partially. Many times political interest gains more importance
as compare to societal needs, less preferences are given to public interest and what justice and
morality demand. This power is misused and irrelevant considerations are considered relevant,
absence of application of mind etc. are the factors which influence pardoning power. Fairness
and legal certainty which occupies the center position in Rule of Law should be kept in mind
while exercising of such power.

There are two cases which show the contemporary practice.

1. Swaran Singh v. State of U.P.28 : There was a three judge bench consisting of K.T.
Thomas, M Punchi and M Srinavasan. In this case a MLA of the State Assembly had
been convicted of the offence of murder and within a period of less than two years he
succeeded in coming out of the prison as the Governor of Uttar Pradesh granted
remission of the remaining long period of his life sentence. The son of the deceased
moved the Allahabad High Court challenging the aforesaid action of the Governor and
the same having been dismissed the matter was brought to this Court by grant of special
leave petition. This Court had come to the conclusion that the Governor was not told of
certain vital facts concerning the prisoner such as his involvement in five other criminal
cases of serious offences, the rejection of his earlier clemency petition and the report of
the jail authority that his conduct inside the jail was far from satisfactory and out of two
years and five months he was supposed to have been in jail, he was in fact on parole
during the substantial part thereof. The Court further held that when the Governor was
not posted with material facts the Governor was apparently deprived of the opportunity to
exercise the powers in a fair and just manner and the order fringed on arbitrariness. The
Court, therefore, quashed the order of the Governor with a direction to reconsider the
petition of the prisoner in the light of the materials which the Governor had no occasion
to know earlier. The Court held that if the pardon power “was exercise arbitrarily, mala
fide or in absolute disregard of the finer canons of the Constitutionalism, the by-product
order cannot get the approval of law and in such cases, the judicial hand must be
stretched to it”

27
Subs. By the Constitution (forty second amendment) act, 1976, sec. 13, for clause (1) (w.e.f. 3.1.1977)
28
AIR 1998 SC 2026

23
 2. Satpal v. State of Haryana29 : In this case there was two judge bench consisting of G.B.
Pattanaik & U. C. Banerjee. The Judgment was delivered by Pattnaik, J. As per the facts
of the case respondent Siriyans Kumar Jain along with four other accused persons
belonging to the Bhartiya Janta Party were tried for having committed offence under
Section 302 read with Sections 149 and 120-B as well as under Sections 392, 148, 452
and 323 of the Indian Penal Code. The learned Sessions Judge convicted all the five
accused persons. Siriyans Kumar Jain (Respondent 3) in the present writ petition instead
of surrendering to serve the sentence, as directed by this Court, filed an application before
the Governor invoking his jurisdiction under Article 161 of the Constitution. The
Secretary to the Governor addressed a letter to the Secretary to the Government of
Haryana, Department of Jails requesting for a report in the matter to be placed before His
Excellency, the Governor of Haryana. The appropriate authority, namely, Joint Secretary
to the Government in the Home Department indicated in his note that the opinion of the
Legal Remembrance should be obtained as to whether this is a fit case for exercising the
power under Article 161 of the Constitution or not. The opinion of the Legal
Remembrancer was then placed before the Minister concerned and finally the Chief
Minister agreed with the views of the Legal Remembrancer and came to the conclusion
that this is a fit case where discretion given under Article 161 of the Constitution be
exercised and relief prayed for be granted. On the basis of the aforesaid advice of the
Chief Minister the Governor finally granted pardon. It was contended that the very order
passed by the Governor would indicate total non-application of mind. It was found that
Governor has passed the order without being aided and advised by the Council of
Ministers and, therefore, the order is vitiated. Thus court held that “the said power being
a Constitutional power conferred upon the Governor by the Constitution is amenable to
judicial review on certain limited grounds. The Court, therefore, would be justified in
interfering with an order passed by the Governor in exercise of power under Article 161
of the Constitution if the Governor is found to have exercised the power himself without
being advised by the Government or if the Governor transgresses the jurisdiction in
exercising the same or it is established that the Governor has passed the order without
application of mind or the order in question is mala fide one or the Governor has passed
the order on some extraneous consideration.”

29
AIR 2000 SC 1702

24
Scope of Judicial Review
The Merriam Webster Dictionary of law says that Judicial Review is the power of a court to
review the action of public sector bodies in terms of their Constitutionality in some jurisdiction;
it is also possible to review the Constitutionality of law itself. Judicial review in India can be
broadly divided into judicial review of legislative action, judicial review of judicial decisions and
judicial review of administrative action.

The court in the exercise of this power ought to protect the people’s fundamental and human
rights.
The question which arises here is that whether the judicial review has any limit. In Syed T.A.
Haqshbandi v State of J&K30 the Supreme Court observed that:
“Judicial review is permissible only to the extent of finding whether the process in reaching the
decision has been observed correctly and not the decision itself, as such. Critical or independent
analysis or appraisal of the materials by the court exercising powers of judicial review unlike the
case of an appellate court would neither be permissible nor conducive to the interests of either
the officer concerned or the system and institutions. Grievances must be sufficiently
substantiated to have firm or concrete basis on properly established facts and further proved to be
well justified in law, for being countenanced by the court in exercise of its powers of judicial
review. Unless the exercise of power is shown to violate any other provision of the Constitution
of India or any of the statutory rules, the same cannot be challenged by making it a justifiable
issue before the court”.
The Epuru Sudhakar case31 is the latest in the application of judicial review of cases related to
pardoning power.
It once again brought in light the view that the exercise or non exercise of pardoning power by
the President and the Governor would not be immune from judicial review.
The two judges contended that the exercise of this pardoning power must have coherence with
the principles of Rule of Law. “Rule of Law is the basis for evaluation of all decisions (by the
court)... That rule cannot be compromised on the grounds of political expediency. To go by such

30
(2003) 9 SCC 592.
31
Epuru Sudhakar & Anr. v. Govt. of A.P. & Ors. AIR 2006 SC 3385

25
considerations would be subversive of the fundamental principles of the Rule of Law and it
would amount to setting a dangerous precedent”32
The Supreme Court had set aside a decision of the then Andhra Governor, remitting the sentence
of a Congress activist who had faced ten years in prison for killing two persons.
“Exercise of executive clemency is a matter of discretion and yet subject to certain standards. It
is not a matter of privilege. It is a matter of performance of official duty... the power of executive
clemency is not only for the benefit of the convict, but while exercising such a power the
President or the Governor as the case may be, has to keep in mind the effect of his decision on
the family of the victims, the society as a whole and the precedent it sets for the future.”
“An undue exercise of this power is to be deplored. Considerations of religion, caste or political
loyalty are fraught with discrimination,”
The judges also stated that the pardoning orders under judicial review can be termed as invalid if
the order passed is:
• Without application of mind
• Mala fide
• Wholly on irrelevant considerations
• Relevant material kept out of consideration
• Based on arbitrariness33

Regarding their opinion on this power they contended that:

• This power is discretionary subject to certain standards. It is an executive action that set
asides the punishment of a crime.
• If obtained through mistake or misrepresentation it can be cancelled.
• Pardoning authorities are sole judges of facts and situations.

Another landmark case is the Supreme Court case of Mansukhlal Vithaldas Chauhan v. State of
Gujarat34. It clarified that the major objective of judicial review is not to create a judicial
substitute for an executive one rather it is to limit itself to questions of legality.

32
Id. para 11
33
Id. para 16
34
AIR 1997 SC 3400

26
Important among them are:
1. Did the decision making authority exceed its powers?
2. Did the authority commit an error of law?
3. Did the pardoning authority commit a breach of the rules of natural justice?
4. Did the authority reach a decision that no reasonable tribunal would have reached?
5. Did the authority abuse its powers?
It sincerely accepted that the court does not have the expertise to correct an administrative
decision.

Separation of Powers
Justice Frankfurter had remarked that the enforcement of a rigid conception like separation of
powers is practically impossible.
Very often, it is presumed that the pardoning power instituted in President and the Governor by
the Constitution of India is prima facie in violation of separation of powers which is one of the
aspects of the basic structure of our Constitution. But it should be very well pointed out here that
the act of pardon by the executive is not at all the violation of this concept. The role of judiciary
is limited to the job of hearing the case and making judgment delivery by interpreting the laws.
Implementing the sentence is altogether an executive function. The pardoning authority by
giving pardon, respite, remission etc. performs an executive function which is modification of
the implementing the sentence only and this is not at all a trespass on the territory of the
judiciary.

A court only takes into contention what is brought before it in accordance with laws of procedure
and evidence. Whereas, in matters of clemency, extra judicial matters are also taken into
consideration on grounds of public good and welfare. These powers, although may have the
same effect but they operate in distinct fields and on different principles.

27
Important Cases & Opinion of Judges
Dhananjoy Chatterjee v. State of West Bengal35

Bench – K.G.Balakrishnan and B.N.Srikrishna

Appellant submitted that their petition filed under Art. 161 was not properly dealt by the
authorities that is the State Govt. and that the Governor was not apprised of the relevant facts
and materials and there was no application of mind.

Court admitted the fact that the Governor was deprived of his opportunity to use the power in
a fair and just manner. Even though the Governor, according to previous interpretations, is to
use its power on the basis of aid and advice of the Council of Ministers, yet material facts,
including mitigating factors must be considered.

It was ordered that the material facts along with other factors be present in front of the
Governor for proper exercise by him.

Thus we find that the practice of Council of Ministers to aid and advice which is to be binding on
the Governor is not a good practice as it leads to misuse and creates lack of interest in the
Governor or deprives him. So according to the researcher, there should be some guidelines to be
followed by the Governor so that he is not fully autocratic, nor totally dependent on the Council
of Ministers for their binding aid and advice.

Kehar Singh v. Union of India36

Bench – R.S.Pathak(CJ), E.S.Venkataramiah, Ranganath Mishra, M.N.Venkatachalliah,

N.D.Ojha

Kehar Singh was convicted of murdering Late Mrs. Indira Gandhi. He was awarded death
sentence by the Trial Court of Delhi. He also appealed to the High Court which turned down
his appeal and finally to the Supreme Court which pronounced him guilty. He filed mercy
petitions to the President but reply came which stated that, “The President is of the opinion

35
AIR 2004 SC 3454
36
AIR 1989 SC 653

28
 that he cannot go into the merits of a case finally decided by the highest court of the land”.37
Finally his son appealed to the Supreme Court under a special leave appeal.

Pathak C.J. held that Article 21 is of paramount importance and since power of pardon is a
Constitutional scheme therefore it was to be properly used and the merits of the case should
be looked into by the President. He said “… the fallibility of human judgment cannot being
undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has
been considered appropriate that in the matter of life and personal the protection should be
extended by entrusting power further ot some higher authority to scrutinize the validity of the
threatened denial of personal liberty”38 So the President ought to go into the ‘merits of the
case’ & its judgment, scrutinize the evidence himself & deliver his own verdict. President
meant only to correct ‘Judicial Errors’ and ‘Reasons of State’.

Pathak C.J. referred to the case of Sarat Chandra Rabha v. Khagendra Nath39 and the case
U.S. v. Benz40 to distinguish between a court reducing a sentence and an executive remission
of the remaining part of the prisoner’s sentence. He explained the theory of different planes.
He said “we are of the view that it is open to the President in the exercise of the power vested
in him by Art. 72 of the Constitution to scrutinize the evidence on record of the criminal case
and come to a different conclusion from that recorded by the court in regard to the guilt of,
and sentence imposed on the accused. In doing so, the President does not amend or modify or
supersede the judicial record. The judicial record remains intact and undisturbed. The
President acts in a wholly different plane from that in which the court acted. He acts under a
Constitutional power and the nature of which is entirely different from the judicial power and
cannot be regarded as an extension of it. And this is so, notwithstanding that the practical
effect of the Presidential act is to remove the stigma of guilty from the accused or to remit the
sentence imposed on him.”41

Regarding the guidelines to be exercised by the President while using his Power of Pardon
Pathak C.J. stated that “It seems to us that there is sufficient indication in the terms of Article
72 and in the history of the power enshrined in the provision as well as existing case-law, and
specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any
precise clearly defined and sufficiently channelized guidelines, for we must remember that

37
id. pp. 656
38
Supra note 36 pp. 657
39
AIR 1961 SC 334
40
75 L.Ed
41
Supra note 36 pp. 658

29
 the power under Article 72 is of the widest amplitude, can contemplate myriad kinds and
categories of cases with facts and situations varying from case to case, in which the merits
and reasons of State may be profoundly assisted by prevailing occasion and passing time”42

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

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

Maru Ram v. Union of India43

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

The petitioners contended that it eclipsed the power of the President to grant pardons under
Article 72 and 161. It was argued that since Sections 432 and 433-A are statutory provisions and
modus operandi of the Constitutional power under Articles 72 and 161, Section 433 would be
ineffective because it detracts from the operation of Sections 432 and 433-A which are the
legislative surrogates, as it were, of the pardon powers under the Constitution. It was held htat
“although the powers may be similar, but they are not the same or identical. The two powers
differ in their source, substance and strength. Section 433A cannot be invalidated as indirectly
violative of Articles 72 and 161 which cannot suffer the vicissitudes of simple legislative
process.”44

The court held the fact that the power under Article 72 and 161must be exercised by the
President or the Governor in accordance with the aid and advice of Council of Ministers.
KrishnaIyer J. said “It is fundamental to the Westminster system that the Cabinet rules and the

42
Supra note 36 pp. 661
43
1981 SCR (1) 1196
44
id. pp. 1211

30
Queen reigns. The President and the Governor, be they ever so high in textual terminology, are
but functional euphemisms promptly acting on and only on the advice of the Council of
Ministers save in a narrow area of power. So, even without reference to Article 367(1) and ss.
3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that in the matter of exercise of the
powers under Articles 72 and 161, the two highest dignitaries in our Constitutional scheme act
and must act not on their own judgment but in accordance with the aid and advice of the
ministers. The Constitutional conclusion is that the Governor is but a shorthand expression for
the State Government and the President is an abbreviation for the Central Government.” 45

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

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

"The rule inhibiting arbitrary action by Government which we have discussed above must
apply equally where such corporation is dealing with the public, whether by way of giving jobs
or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship

45
id. pp. 1240

31
with any person it likes at its sweet will, but its action must be in conformity with some principle
which meets the test of reason and relevance.

This rule also flows directly from the doctrine of equality embodied in Article 14. It is now
well settled as a result of the decisions of this Court in E.P.Royappa v. State of Tamil Nadu and
Maneka Gandhi v.Union of India that Article 14 strikes at arbitrariness in State action and
ensures fairness, and equality of treatment. It requires that State action must- not be arbitrary but
must be based on some rational and relevant principle which is nondiscriminatory; it must not be
guided by any extraneous or irrelevant considerations, because that would be denial of equality.
The principle of reasonableness and rationality which is legally as well as philosophically an
essential element of equality or non-arbitrariness is projected by Article 14 and it must
characterise every State action, whether it be under authority of law or in exercise of executive
power without making of law."46

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

Pardoning: Power or Function?

This has been a highly debatable issue as its nature will decide whether or not there is need for
guidelines for exercise for pardoning power.

Before we go into this debate we first need to understand the difference between power and
function. They are as follows:
a) Power is always vested in an individual. E.g. in ancient Indian state system power was
solely vested in the king. Whereas function is vested in more than one person or
institution. E.g. various governmental authorities, because the actual work is carried out
by those authorities. Function is always vested in more than one person or institution.

46
id.

32
 b) Power comes with the discretion. It means in exercising the power when there are more
than one options, what to choose and what not solely depends upon the power holder.
But so far as the function is concerned there is no such question of discretion. There are
no such options. It is mandatory to the person who performs it to perform it.

c) Power is independent in nature. It means when the power is provided, no advice or aid is
needed, it is up to power holder to take advice or not and not up to any other person. But
function is carried on with consultation with others, with aid and advice of others.
d) Power cannot be delegated, except provided by the source of power. Whereas the
functions can be delegated or reassigned.47
From above if we examine Article 72 and 161, as was intended by the Drafters; we come to
following conclusion about the nature of pardon:

i) It was to be vested only in the President and the Governor in absolute, plenary form; no
other body would be given the same power in their respective scope.48

ii) President was to be given full discretion about what facts are to be considered and
interpreted and what judgement is to be given.

iii) Pardoning under the Constitution did not state about any interference from anybody else
for example any advice by ministers. However it was to be upto the President to take up
the advice. Thus it was meant to be a power.
iv) Further the Pardoning could not be delegated to any other person except for permission
by the President.
From the above we come to the conclusion that Pardoning was meant to be a power of the
President not a function.

47
Supra note 12
48
Kehar Singh v. Union of India AIR 1989 SC 653

33
 CHAPTER 4

Suggested Guidelines
Although, the research paper’s main focus is to concentrate on the need for guidelines there
should be certain predefined guidelines which the pardoning authority should keep in mind so
that neither is the pardoning authority totally dictated by the Council of Ministers nor he himself
becomes an authoritarian as was stated in the Statement of Problem:-

1. Post conviction behavior and indications of remorse

The pardoning authority should definitely take into contention the convict’s behavior over the
years, both in public and in prison. Also, it should be seen that whether he shows any kind of
remorse, has a feeling of guilt and deep regret and is fully determined to have a better future a by
establishing a break from the past.

2. Period of imprisonment undergone and left

Delay in judicial proceedings has unfortunately become an inherent part of our system. The time
gap from the date of commencement of crime to the mercy petition being accepted or rejected is
often quite shocking. So, in all such cases, the significance of the already long period spent in the
custody should be kept in mind.

3. Interest of the prisoner and the society

In rarest of rare cases, at later stages it is found out that that the trial done in the court, many
relevant facts were misrepresented and many others were not brought to light. Sometimes key
witnesses having the power to turnaround the case turn hostile under various illegal threats and
pressures. In all such cases, every foot forward should be kept with utmost care, to keep the faith
of the society both in the judiciary and in the executive intact.

4. Age of the prisoner and life expectancy

34
It is said even in a devil, resides a heart which is extremely soft, caring, tender and gentle. But
circumstances often force him to become an altogether different person. So if it is evident that
the criminal has very little amount of lifetime left and has already spent a substantial part of his
life in prison, then he can be definitely shown some mercy.

Global Scenario
In U.K. The Monarch exercises the Power of Pardon on the advice of the Home Secretary. The
Power of Pardon is put to use after the judiciary i.e. the House of Lords have given their decision
of the case. It is an acknowledgement of the fallibility of the judicial process vested with
Sovereign, Home Secretary, and the Governors of colonies and later Governors-General of the
dominions. According to the Report of the U.K. Royal Commission pardon can be granted
where the Home Secretary feels that despite the verdict of the jury there is a ‘scintilla of doubt’
about the prisoner’s guilt.49However the power is subjected to Judicial Review.

In USA The President only can grant pardon except in cases of impeachment as per Art II (2).
However since US follows a Presidential form of Government which gives excess of power to
the President and he becomes a real head not a nominal head, so he cannot be guided by any
Ministers unless he desires so. Also the power of pardon is not subject to Judicial review except
when it is very evident that the power has been wrongly misused.

In Nepal Power of Pardon has been vested vide Article 122 of the new Constitution of Nepal
which states that “His Majesty shall have the power to grant pardons and to suspend commute or
remit any sentence passed by any court, special court, and military court or by any other judicial,
quasi-judicial or administrative authority or institution.”

In Nigeria The President may grant any person concerned with or convicted of any offence
created by an Act of the National Assembly a pardon…; substitute a less severe form of

49
Bhumika Sharma, World Perspective of the Power of Pardon,
http://www.indlawnews.com/Newsdisplay.aspx?uid=d492c53f-1ed3-4118-8321-b65c797f5795&type=1, accessed
on 25th Feb, 2010.

35
punishment for any punishment…; or remit the whole or any part of any punishment or of any
penalty or forfeiture. The powers of the President shall be exercised by him after consultation
with the Council of State.50

In Canada the Governor General of Canada has the power to exercise clemency and pardon by
virtue of the Letters Patent and as set out in Sections 748, 749 of the Criminal Code of Canada.

Conclusion
Precisely, what we can conclude on the basis of this research paper is that the concept of
pardoning power is not something new or nascent. It has been in existence since ages together
and has greatly evolved with the passage of time. This evolution has both positive and negative
aspects but the latter dominates.

Positive aspects include things like justification for its existence, it being a measure to act as an
inter organ control on the judiciary etc. That is why, it was adopted from the Government of
India Act with just slight modifications and without much deliberations.

But then the sad and unfortunate part of the story is that, there has been continuous misuse and
abuse of this power, sometimes by the executive by arbitrary exercise and mostly by the Council
of Ministers. The Constitution of India does not authenticates this practice of the President being
bound by the advice of the Council of Ministers in the exercising of this power. But this is where
the Indian Judiciary stands guilty and is to be blamed as it has interpreted this power in a
completely wrong manner in many famous cases discussed. The Council of Ministers has always
been taking full undue advantage of this wrong interpretation by prioritizing self and party
interests over the interests of the society at large.

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

50
id.

36
It never included any compulsory role of the Council of Ministers nor the drafters had expected
its misuse by the Executive. But the way it is being practiced in the current scenario is definitely
forcing us to have certain predefined and prefixed guidelines for the exercising of this power.

37
Bibliography
BOOKS REFERRED
1) H.M.Seervai, Constitional law of India, 4th Edition, 2008.
2) Constituent Assembly Debates, Vol.7, pages 1118-1120 and Vol. 10.
3) Mahendra P. Singh, V.N.Shukla’s Constitution of India, 11th Edition, 2008.

WEBSITES
1) Rohan Sahai, Limits of the Pardoning Power under Indian Constitution,
http://www.nujslawreview.org/articles2009vol2no2/rohan-sahai.pdf, accessed on 25th
Feb, 2010.

2) Subodh S. Patil, Status Of President Under Constitution: Problems And Perspectives,

http://www.indialaws.info/display.aspx?4514, accessed on 27th Feb, 2010.

3) Kaushal Shroff, Presidential Pardon : A legal, historical and Political perspective,

http://www.legalserviceindia.com/article/l370-Presidential-Pardon.html, accessed on 26th
Feb, 2010.

4) Dr. A. Krishna Kumari, Capital Punishment And Statutory Frame Work In India,
http://works.bepress.com/cgi/viewcontent.cgi?article=1008&context=krishnaareti,
accessed on 27th Feb, 2010.

5) Bhumika Sharma, World Perspective of the Power of Pardon,

http://www.indlawnews.com/Newsdisplay.aspx?uid=d492c53f-1ed3-4118-8321-
b65c797f5795&type=1, accessed on 25th Feb, 2010.

6) Written Submissions of Senior Counsel Soli Sorabjee as Amicus Curiae, http://www.ebc-

india.com/downloads/written_submissions_of_mr_soli_sorabjee_in_power_to_pardon_c
ase.pdf

CASES
1. Nar Singh v. State of Uttar Pradesh AIR 1954 SC 457
2. Maru Ram v. Union of India 1981 (1) SCC 107
3. Swaran Singh v. State of U.P. AIR 1998 SC 2026

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4. Satpal v. State of Haryana AIR 2000 SC 1702
5. Biddle v. Perovich 71 L. Ed.
6. Epuru Sudhakar & Anr. v. Govt. of A.P. & Ors. AIR 2006 SC 3385
7. Dhananjoy Chatterjee v. State of West Bengal AIR 2004 SC 3454
8. Kehar Singh v. Union of India AIR 1989 SC 653

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