Whether the Pardoning Power of the Governor Immune from Judicial Review


Since the promulgation of our constitution, the President has the right to bestowed persons accused or convicted in certain criminal cases. He was given this power to eliminate unnecessary cruel treatment and rescue errors in the administration of criminal law, but this right given to the country’s highest authority runs counter to the essence of the rule of law. Many people are protesting. There have been many rulings on this matter, confirming that the power granted to the enforcement department has not been hindered. Renowned American jurist, Oliver Wendell Holmes had once said ‘in a modern democracy, the power to punish with death rests with the judiciary, and the power to spare life with the executive.’ Holmes’ words will bear more significance after a reading of Article 72 of constitution of India: – Pardoning Power of President to grant pardons, etc., and to suspend, remit, or commute sentence in certain cases:

The pardoning power of president shall have the power to grant pardons, reprieves, respites all remissions of punishment for to suspend, remit or commute the sentence of any person convicted of any offense

  • In all cases where the punishment or sentence is by a court martial
  • In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the union extends;
  • In all cases where the sentence is a sentence of death.

Nothing in sub-clause (a) of Clause (1) shall affect the pardoning power conferred by law on any officer of the armed forces of the union to suspend, remit or commute a sentence passed by court-martial.

Nothing in sub clause (c) of Clause (1) shall affect the power to suspend, remit or compute a sentence of death exercisable by the governor of a state under any law for the time being in force.


Since independence, it has been known that the Indian President generously pardoned, but statistics on this have caused controversy.

According to the Indian Constitution, it is the President (“President”) and Governor of India that grant the power of pardon in India. The head of state can exercise power based on recommendations given to him by the authorities.

Pardon is considered an act of mercy and can reduce the punishment associated with someone’s conviction. Law on Pardon has been evolved from section 295 of the Government of India Act of 1935, which granted the above powers. The Constitution was subsequently repealed and replaced by Article 72 of the Constitution. The legislator’s purpose in enacting this regulation is to correct all types of judicial errors, taking into account factors such as public interest and welfare. There are special ambiguities surrounding the scope of the president’s exercise of power stipulated by the Constitution. Although not explicitly mentioned, in fact, the recognition of the president’s amnesty is not absolute. The President exercised this power on the recommendation of the Council of Ministers.

The power of Pardon can be granted not only by the President but by the executive as a whole, as it is termed to be essential for the President to resort to the aid and advice of his ministers[1].

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The pardon completely abolished the criminal’s sense of guilt, and also the Justice Field in Ex Parte Garland also gave a proper explanation of the legal effect of the pardon. Therefore, from a legal point of view, the criminal is innocent, as if he had never committed a crime…it restored him as a new person and gave him new credibility and abilities. One of the main controversies about the power of the president is the president’s discretion. It was held in the Maru Ram v. Union of India [2]which was a landmark judgment that the president could not exercise his discretion and was bound by the support and recommendations of his council of ministers.

This practice of granting forgiveness i.e right to pardon has existed for a long time and is now used in other countries around the world. For example, the US Constitution also grants the President such unrestricted and absolute powers. In the UK, these powers are considered ” royal prerogative[3]..” In some cases, many others believe that this practice, if applied arbitrarily and discriminatorily, without strict guidelines, will be a catalyst for abuse.

Jurisprudence of granting pardon

The basic philosophy of forgiveness says: “All civilizations recognize that the power of pardon is exercised at the right time as a kind of grace and human behavior, and this generous power is, to a certain extent, the function of the government. Where the attributes of God are most imperfect and inadequate, judges are always victimized by mercy.” The power of forgiveness takes into account the public interest. It should be exercised for the legitimate purpose of all punishments on the grounds of public interest.

Concept of Review

According to the Merriam Webster Dictionary of Law “Judicial review is the jurisdiction of the court to review the actions of public institutions from the perspective of the constitutionality of certain jurisdictions, and can also check the constitutionality of the law itself.
Independent judicial review is a basic feature and guarantees the beliefs stipulated in the Constitution. The establishment of an independent and fair judicial system is necessary for constitutional provisions and public consultation. Judicial review in India can be roughly divided into judicial review of legislative measures, judicial review of judicial decisions and judicial review of administrative measures. The courts that exercise the right of judicial review actively defend many non-legal powers of government agencies in terms of human rights, fundamental rights, citizens’ right to life and freedom, and control of various properties and assets can be used for foreign aid, such as buildings, hospitals, roads and compensation for crime victims.

The question that arises here is whether judicial review is restricted. In Syed T.A. Haqshbandi v State of J&K[4] the Supreme Court observed that:
“The scope of judicial review is only to determine whether it has correctly followed the procedures leading to the decision correctly or not on its own. Critical or independent analysis or evaluation of it neither recognizes nor encourages the interests of officials or the system. Complaints It is based on recognized facts, must be fully verified, and must be fully proven by judicial review and the law recognized by the court, unless the proof is proven to violate the procedure. Any other provisions of the Indian Constitution or any Laws and regulations, none of us can challenge this by raising legitimate reasons in court.”

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Pardoning power under judicial review

There has been controversy over whether the right of the executive to grant Pardon or pardoning power should be subject to judicial review. The Supreme Court has issued legislation to conduct a judicial review of pardoning power in various cases

Recently, in India, the Kerala High Court gave a critical judgment, which reinforced the ratio set forth in the landmark case of Epuru Sudhakar v. State of Andhra Pradesh[5] (“Epuru Sudhakar Case”).[6] The question before the Supreme Court in that case was regarding whether judicial review can be exercised to supersede the Presidential pardon. On appeal, the Supreme Court held that the President’s clemency power is not immune from judicial review but limited to certain grounds only.[3]

In Maru Ram v Union of India [7]the constitutional bench of Supreme Court held that the powers stipulated in Article 72 are exercised on the advice of the central government rather than the president himself, and the government’s advice is binding on the head of the republic.

In Dhananjoy Chatterjee alias Dhana v State of West Bengal [8] The Supreme Court reiterated its position in the Maru Ram case and observed that “The powers stipulated in Articles 72 and 161 of the Constitution can be exercised not only by the president and governor, but also by the central government and state governments. Appropriate government recommendations are binding on the head of state.”

The major case in which the concept of judicial review of the President power on grounds of its merit was that of Kehar Singh Vs. Union of India[9]. In this case SC held that:
“The history of Article 72 and its powers and the current case law have been fully pointed out. There is no need to specify specific criteria. It is important to remember that over time, power based on the merits and reasons of the nation may gain A great help, and a very important point is that the functions themselves should enjoy a high status in the constitutional system. Presidential orders must not be subject to judicial review for their interests.”

According to Article 72 of the Constitution, the nature and scope of the Indian President’s Pardon power needed to be discussed. Under these circumstances, the Supreme Court confirmed the death penalty of one of the appellants. The President also rejected his petition for mercy 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. The term “pardon” itself means that it is a remedy at full discretion, and there is no need to prove the reasons for its grant or rejection. The Keharsi Supreme Court once again in Kehar Singh reiterated its previous position that the President’s grant of pardon was Grace’s act and therefore cannot be regarded as a matter of rights. It is unreasonable to use the president’s fully administrative power.

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In the case of Syed T.A. Haqshbandi v. State of J&K[10], it was held by the Supreme Court that right to review the procedures of the award decision and conduct judicial review only within the scope of not reviewing the decision itself. In principle, A person can beg for mercy based on the whims and fantasies of the person in charge. Although the President is obliged to act on the recommendations of the Council of Ministers, there is no mechanism to reliably implement the above steps.

According to the constitution, if the president refuses to obey the order, there is almost no remedy except to provide impeachment to the minister. In addition, because the judiciary cannot respond to the minister’s suggestion in any manner, the president’s pardon power cannot be maintained.

Analysis & Conclusion

After a lot of debate, there is still a big problem-understanding the relationship between executive and justice. Let’s imagine. After many appeals, the convicted finally turned to the government and pleads for mercy. As a result, the president admitted his generosity. In this case, the judicial review of the issue is biassed because the court cannot review the previous ruling, nor can it deny the president’s pardoning power to return to the final ruling. The pardon decision cannot be exactly the same as the court. The president must consider all circumstances, including the victim’s family, the state of society as a whole, and realize that he will set a precedent in the future.

Justice Bhagwati in National Textiles Workers Union v P.R.Ramakrishnan [11]said “Law cannot stand still; it must change with the changing social concepts and values. Law constantly be on the move adapting itself to the fast-changing society and not lag behind”.

So, if the president’s absolute power to grant pardon can be subject to judicial review, why can’t we review the power granted to the President of India?

Therefore, in my opinion, it is a matter of time before the judiciary that it must win in order to ensure that the judiciary is unrecognizable and does not abandon the world’s largest democracy. The pardon must undergo judicial review.

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[1] Samsher Singh v. State of Punjab: AIR 1974 SC 2192, (1974) 2 SCC 831.

[2] AIR. SC 2147 (1980) 1 SCC 107. 1980.

[3] Hartalkar: Critical Evaluation of Pardoning Power, Criminal Law Journal, 1996, 152.

[4]  (2003) 9 SCC 592

[5] AIR 2003

[6] (2006) 8 SCC 161

[7] Ibid, Para 6.

[8] SCR. (1) 37, 1994 SCC (2) 220, 1994

[9] AIR (1989) SC 653.

[10] AIR 2003

[11] 1983 AIR 750, 1983 SCR (3) 12

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