International Journal of Law

International Journal of Law

ISSN: 2455-2194
Impact Factor: RJIF 5.12
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Volume 4; Issue 2; March 2018; Page No. 277-279

Article 72: pardoning power not unbridled

Dr. Sandhya Verma1, Ankit Prasad2
1
Faculty of Law, Law College Dehradun, Uttaranchal University, Uttarakhand, India
2
Research Scholar, Law College Dehradun, Uttaranchal University, Uttarakhand, India

Abstract
Since the time of inception of our nation’s constitution, the President has been bestowed upon with the power to grant clemency to
accused or convicted persons in certain criminal cases. While this power is furnished to him to eliminate unnecessary harshness or
remedy mistake in the administration of criminal law, it is contested by many that this right given to the highest authority of the
country goes against the very essence of the rule of law. There has been great amount of adjudication on this matter and while it
has been affirmed that the powers conferred on the executive are unhindered, recent debates on the issue have brought out the need
for judicial review of the same. In the this paper I will try to examine the nature of this power entrusted with the President, the use
of this power today and ultimately aim to answer the crucial question– whether this power is in conformity with notions of natural
justice and rule of law.

Keywords: article 72, pardoning power, judicial review

Introduction president to grant pardons, etc., and to suspend, remit, or

"The longer I live, the larger loom those decisions about commute sentence in certain cases:
justice and mercy that I had to make as governor. They didn't 1. The president shall have the power to grant pardons,
make me feel godlike then- far from it; I felt just the opposite. reprieves, respites all remissions of punishment for to
It was an awesome, ultimate power over the lives of others suspend, remit or commute the sentence of any person
that no person or government should have, or crave. And convicted of any offence-
looking back over their names and files now, despite the i) In all cases where the punishment or sentence is by a
horrible crimes and the catalog of human weaknesses they court martial;
comprise, I realize that each decision took something out of ii) In all cases where the punishment or sentence is for an
me that nothing--not family or work or hope for the future-- offence against any law relating to a matter to which
has ever been able to replace.” the executive power of the union extends;
- Edmund G. Brown, former Governor of California. iii) In all cases where the sentence is a sentence of death.
2. Nothing in sub clause (a) of Clause (1) shall affect the
Since the time of inception of our nation’s constitution, the power conferred by law on any officer of the armed forces
President has been bestowed upon with the power to grant of union to suspend, remit or commute a sentence passed
clemency to accused or convicted persons in certain criminal by court martial.
cases. While this power is furnished to him to eliminate 3. Nothing in sub clause (c) of Clause (1) shall affect the
unnecessary harshness or remedy mistake in the power to suspend, remit or compute a sentence of death
administration of criminal law, it is contested by many that exercisable by the governor of a state under any law for
this right given to the highest authority of the country goes the time being in force.
against the very essence of the rule of law. There has been
great amount of adjudication on this matter and while it has Nature
been affirmed that the powers conferred on the executive are Since independence, Indian presidents have been known to
unhindered, recent debates on the issue have brought out the grant pardons generously, although the statistics in this regard
need for judicial review of the same. In the this paper I will try are in dispute. Pardon refers to an act of grace and cannot be
to examine the nature of this power entrusted with the demanded by a person as a form of a right. Despite the
President, the use of this power today and ultimately aim to wording of the constitutional provision, it is granted not only
answer the crucial question– whether this power is in by the President but by the executive as a whole, as it is
conformity with notions of natural justice and rule of law. essential for the President to resort to the aid and advice of his
Renowned American jurist, Oliver Wendell Holmes had once ministers [1].
said ‘in a modern democracy, the power to punish with death A pardon exonerates an offender completely of all his guilt,
rests with the judiciary, and the power to spare life with the and an apt description of the legal effect of a pardon was put
executive.’ Holmes’ words will bear more significance after a forward by Justice Field in Ex Parte Garland:
reading of Article 72 of constitution of India: - Power of “When pardon is full, it releases the punishment and blots the

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existence of the guilt, so in the eye of the law the offender is and vulnerabilities of many other non-law persons. Why then
as innocent as if he had never committed the crime...it restores is there a need for further supremacy to overrule the decision
him, as it were, a new man and gives him a new credit and of the Supreme court, if required?
capacity.” In the much-deliberated Kehar Singh v. Union of India [6]
One major contention with respect to presidential power was case, the Supreme Court asserted that in matters of life and
the discretion enjoyed by the President. It was held in the personal liberty – the two being the most important attributes
landmark judgment Maru Ram v. Union of India [2] that the in society, the deprivation of which is a serious issue – there is
President cannot exercise discretionary powers and is bound a paramount need to extend the protection of these rights by
by the aid and advice of his council of ministers. Of course, delegating the power to an even higher authority.
the President not being able to function without the advice of This seems reasonable enough. There is a need for a
the ministers has its own problems, which I will discuss later pardoning clause as no institution - including the judiciary- is
in the paper. scrupulous and there is always a chance of fallacy. This is
This practice of conferring the right of pardon on a figure of especially true in the case of capital punishment, where an
authority has existed for long, and is adopted today in other erroneous verdict by the courts can literally be fatal to the
countries across the globe as well; for instance, the U.S. convicted. Thus, resorting to the executive to solve this
Constitution too prescribes such a power to the President problem is fair.
which is unlimited and absolute, and in the United Kingdom The pardoning power has been awarded to the executive,
where this power is considered to be a ‘royal prerogative [3].’ headed by the President, the highest officer of the nation and
While some people feel that grant of presidential pardon is expected to exercise it wisely and not abuse it. In recent times,
legitimate in certain cases, many others believe that this however, the veracity of this power has been in question. Is
practice is a catalyst for abuse if applied arbitrarily, this power subject to limitation or restriction? Can the
discriminatorily and without strict guidelines. judiciary review the decisions of the President?
And Justice for All. Brief Trajectory of Judicial Review on
Jurisprudence of granting pardon Pardons
The philosophy underlying the pardon power is that the “every There are frequent debates on the extent of judicial scrutiny
civilized country recognizes and has, therefore provided for with respect to presidential pardoning. On the one hand, this
the pardoning power to be exercised as an act of Grace and power has been explicitly vested on the executive, and
humanity in proper cases, without such a power of clemency interference by the judiciary would be a misbalance of
to be exercise by some department or functionary of powers. One the other hand, however, it is felt that in the case
government, a country would be most Imperfect and deficient of arbitrary and selective pardoning, it is vital for the judiciary
in its political morality and in that attribute of deity who’s to step in.
judgement are always tempered with Mercy.” In K.M. Nanavati v. State of Bombay [7], the sentence of the
The pardoning power is founded on the consideration of accused was suspended by the Governor of the state under
public good and is to be exercised on the ground of public Article 161 of the Constitution during the pendency of his
welfare, which is the legitimate object of all punishments will appeal in the Supreme Court. Although the Governor’s order
be as well promoted by a suspension as by and execution of was held unconstitutional by the Supreme Court, it was argued
the sentences. that the power of the court to suspend hearing or grant bail is
distinguishable from the power of the executive to grant
Purpose pardon. The court thus embraced the doctrine of Harmonious
Chief Justice Taft, in Ex parte Philip Grossman [4] has said: Construction between both the organs of the government. [8]
“Executive clemency exists to afford relief from undue So, we see that in Nanavati’s case the court stepped in and
harshness or evident mistake in the operation or the attached a restriction to the pardoning power [9].
enforcement of the criminal law. The administration of justice In Sarat Chandra Rabha v. Khagendra Nath [10] the court made
by the courts is not necessarily always wise or certainly a clear distinction between judicial and executive power,
considerate of circumstances which may properly mitigate asserting that ‘both of them operate on different planes, one
guilt.” not affecting the other.’
The fundamental question to ask would be why there is a need The court further went on to give its standpoint in G. Krishta
for such a provision in the first place. India has, since it Goud v. State of Andhra Pradesh [11]. In this case the persons
became an independent Union, adopted Baron de who had approached the court were actually murderers who
Montesquieu’s theory of ‘separation of powers’ [5]. and this, had petitioned to the President to grant clemency to them,
along with ‘exclusivity of organs’ is given utmost importance. which he refused. The court here said that the power granted
There exists the Supreme Court, the highest seat of Indian to the President was ‘historically a sovereign power,
judiciary, which takes into account all facts and evidences politically a residuary power and humanistically an aid of
before arriving at its decision and this decision is binding. It intangible justice [12].’ In this case the court was extremely
can, of course, not be said that the courts have embraced a sort reluctant to exercise judicial review, and Justice Krishna Iyer
of cloak of infallibility – however, in the past, the courts have stated:
succeeded in passing judgments in accordance with principles No power in a republic is irresponsible or irresponsive, the
of natural justice, procedure established by law and rule of people in the last resort being the repositories and
law. Being an organ created for the purpose of adjudicating, beneficiaries of the public power. But two limitations exist in
the judiciary is undoubtedly impervious to the shortcomings our constitutional system. The Court cannot intervene

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everywhere as omniscient, omnipotent or omnipresent being. consider all circumstances, including the position of the
And when the Constitution, as here, has empowered the family of the victim, the society in general and also realize
nation’s highest Executive, excluding by implication, judicial that he will be setting a precedent for the future.
review, it is officious encroachment for this Court to be a
superpower unlimited. References
Despite being initially unwilling to take a stand, the court 1. Samsher Singh v. State of Punjab: AIR 1974 SC 2192,
eventually put limitations on the pardoning power of the (1974) 2 SCC 831.
President. 2. AIR. SC 2147 (1980) 1 SCC 107. 1980.
The court has the power to review the decision of the 3. Hartalkar: Critical Evaluation of Pardoning Power,
executive only in specific cases where the pardoning power is Criminal Law Journal, 1996, 152.
exercised on irrational or extraneous considerations or when 4. 267 US. 87
relevant material has not been reflected on or in malafide 5. Trias politica. Or separation of powers coined by
cases. Montesquieu.
6. See, L’Esprit Des Lois (Spirit of Laws), 1748.
Pardoning power under judicial review 7. AIR. SC 653 (1989) 1 SCC 204. 1989.
There is always been a debate as to whether the power of 8. AIR. SC 112, (1961) 1 SCR 497. 1961.
Executive to pardon should be subjected to Judicial review or 9. Seervai: Constitutional Law of India, 2103, 2.
not. Supreme Court in a variety of cases had laid down the law 10. Also see Sarat Chandra Rabha v Khagendra Nath AIR SC
relating to judicial review of pardoning power. 334. Here, the same bench as Nanavati unanimously
In Maru Ram v Union of India [13] the constitutional bench of accepted the dissenting opinion of Nanavati’s case, 1961.
Supreme Court held that the power under article 72 is to be 11. Ibid.
exercised on the advice of Central Government and not by 12. 1 SCC 157. 1976.
president on his own, and that the advice of the government 13. Ibid, Para 6.
binds the head of the Republic. 14. AIR. 1 SSC 107. 1981.
In Dhananjoy Chatterjee alias Dhana v State of West Bengal 15. SCR. (1) 37, 1994 SCC (2) 220, 1994.
[14]
the Supreme Court reiterated its earlier stand in Maru 16. AIR. 1572, 1981.
ram’s case and said; 17. AIR 653, 1989.
“The power under article 72 and 161 of the Constitution can
be exercised by the central and state governments, not by the
president or Governor on their own. The advice of the
appropriate government binds head of the state.”
The Supreme Court in Ranga Billa [15] case was once again
called upon to decide the nature and Ambit of the pardoning
power of the President of India under article 72 of the
constitution. In this case, death sentence of one of the
appellant was confirmed by Supreme Court. His mercy
petition was also rejected by the president then the appellant
filed a writ petition in the supreme court challenging the
discretion of the President to grant pardon on the ground that
no reasons were given for rejection office Mercy petition the
court dismissed the petition and observed that the term
“pardon” itself signifies that it is entirely a discretionary
remedy and grant or rejection of it need not to be reasoned.
Supreme Court once again in Kehar Singh [16] reiterated its
earlier stand and held that the grant of pardon by president is
an act of Grace and, therefore, cannot be claimed as a matter
of right. The power exercise able by the president being
exclusively of Administrative nature, is not justiciable.

Analysis & Conclusion

After much debate, the big question still remains – figuring
out the relationship between the executive and the judiciary.
Picture this: a convicted person, after much appeal, turns to
the executive as a last resort and pleads for mercy, and the
President consequently grants him clemency. In this scenario,
judicial review of the matter would be bizarre, as the court
can’t turn a blind eye to its previous judgments, nor can it
revert back to its final decision, overriding the President’s
pardon. The decision of granting pardons cannot be taken
exactly the same way as a court – the President will need to

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