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President’s power of pardon under Constitution of India and judicial review

The governmental power was basically divided into

  1. the Legislature
  2. the Executive and
  3. the Judiciary.

In order to ejaculate the intrusions of the three wings of the government Montesquieu theory of Separation of Power was implemented .The theory of separation of powers lays down that these three wings of the government must in a free democracy always be kept separate. Each wing should exercise their respective powers. The legislature cannot exercise executive or judicial power, the executive cannot exercise legislative or judicial power, and the judiciary cannot exercise legislative or executive powers of the government. But enforcement of rigid concept of separation of power would make modern government impossible. The question put forward here i.e. Can President Pardon be subjected to Judicial Review is also an outcome of the tug of war between the three machineries. In India, the President by the virtue of the Indian Constitution is the Executive Head. He is empowered with the power to pardon. If this power of President can be subjected to judicial review?

There are several definitions of crime. One of them is given by Blackstone: “ A crime is a violation of the public rights and duties due to the whole community considered as a community.”

The definition of crime given by Sergent Stephen is “A crime is a violation of the right, considered in references to the evil tendency of such violation as regards the community at large”.

Prof. Kenny defines that “Crimes are wrongs whose sanction is punitive and is in no way remissible by any private person but is remissible by the crown alone, if remissible at all.”

So the crime is not a crime to the individual person but it is a crime against the community. The crown can grant pardon. Such pardon should be given for those acts which can be pardoned and in those cases where it is beneficial to the society. In India there is democracy. According to the Article 52 of the Constitution of India, the President is the Executive head of the Union of India.

Under Article 72 of the Indian Constitution the Indian President is empowered to grant pardon. He can reprieve, respite or remit the punishment. The principles may be stated in brevity:

  1. The President shall have the power to grant pardons, reprieves, respites or remission of punishment or to suspend remit or commute the sentence of any persons convicted of any offence
  2. Such sentence is awarded by a court martial;
  3. 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;
  4. In all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall after 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 a sentence of death exercisable by the Governor of a State under any law for the time being in force.

The power of pardon shall be exercised by the President on the advice of Council of Ministers. The framers of the Constitution had the intention that the misuse of the power would be guarded by the Council of Ministers. They had a good faith on them. Today the time has changed. The Council of Ministers have an absolute power Lord Acton has said “Power tends to corrupt and absolute power corrupts absolutely”. Such absolute power vested in the Council of Ministers encrypted a layer of corruption and there is possibility of a danger of misuse of power. This can only be checked by judiciary. Judicial review is the cardinal feature in a democracy. It assures faith enshrined in the Constitution. 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 its exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens rights of life and liberty.

In Syed T.A. Haqshbandi v State of J&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”.

In Kehar Singh vs. Union of India, the Apex Court held 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 that 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 channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a 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 assist by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme. The order of the President cannot be subjected to judicial review on its merit”.

In Kuljeet Singh vs Lt. Governor of Delhi it was held that the President’s Power under Article 72 can be examined on the facts and circumstances of each case. The court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

In Epuru Sudhakar Case the immunity of the pardoning power of governor from judicial review came up for consideration. The Apex Court aside a decision of then Andhra Pradesh Governor Sushil Kumar Shinde, remitting the sentence of a Congress activist who faced ten years in prison in connection with the killing of two persons including a TDP activist. The Court held: “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 considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent,” “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”. Thus exercise or non-exercise of the pardoning power by the President or Governor would not be immune from judicial review. Justice Bhagwati in National Textiles Workers Union v P.R.Ramakrishnan 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 pardoning power is subject to judicial review. The judiciary should exercise the power with a purpose of not letting down the biggest democracy of the world. This is possible only by independence of judiciary and not by appointment of persons in judiciary having ulterior motive or the stooges as evidenced recently.

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