JUDICIAL REVIEW ON
PARDONING POWERS
NIHARIKA .M
BBA LLB(HONS)
4TH SEMESTER
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Judicial Review on Pardoning Powers, Summaries of Constitutional Law
The pardoning powers of the president and governor under the indian constitution, as well as the scope of judicial review of these powers. It examines the key differences between the pardoning powers of the president and governor, and highlights several supreme court cases that have addressed the issue of judicial review of pardoning powers. Insights into the considerations that should be taken into account when exercising the power of pardon, such as the period of sentence undergone by the convict, their conduct and behavior in prison, and any potential political motivations. The conclusion raises an important question about the role of the judiciary in reviewing pardons granted on moral and humanitarian grounds, suggesting that the judiciary should focus on the moral values rather than just the legal circumstances. Overall, this document provides a comprehensive overview of the complex and nuanced issue of pardoning powers and judicial review in the indian context.
Typology: Summaries
2020/2021
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JUDICIAL REVIEW ON
PARDONING POWERS
NIHARIKA .M BBA LLB(HONS) 4 TH^ SEMESTER
Pardoning powers of President
In the Constitution of India, the power of Presidential Pardon is found in Article 72. Under Article 72 of the Constitution Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, 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 a matter to which the executive power of the Union extends; (c) in all cases where the sentence is a sentence of death (2) Noting in sub clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force
DIFFERENCE
The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. The power differs in the following two ways: (^) The President exercises his pardoning power in cases where a person has violated the union law whereas a governor exercises his pardoning power in cases where a person has violated a state law. (^) The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor. (^) The President can grant pardon in all cases where the sentence given is sentence of death but pardoning power of Governor does not extend to death sentence cases.
SCOPE OF JUDICIAL REVIEW
In the case of Maru Ram v UOI, the court observed that,
“Considerations for exercise of power under Articles 72/
may be myriad and their occasions protean, and are left to the
appropriate Government, but no consideration nor occasion
can be wholly irrelevant, irrational, discriminatory or mala
fide. Only in these rare cases will the court examine the
exercise.”
In Satpal v State of Haryana
The Supreme Court quashed an order of the Governor pardoning a person convicted of murder on the ground that the Governor had not been advised properly with all the relevant materials. The Court spelt out specifically the considerations that need to be taken account of while exercising the power of pardon, namely, the period of sentence in fact undergone by the said convict as well as his conduct and behavior while he underwent the sentence. The Court held that not being aware of such material facts would tend to make an order of granting pardon arbitrary and irrational. The Court also noted the fact that the accused was a member of a political party and had committed the murder during election year.
In Syed T.A. Haqshbandi v State of J and K, 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 justiciable issue before the court”.