Introduction to Judicial Review of Pardoning Power 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 a… Read More »

Introduction to Judicial Review of Pardoning Power

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 a 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 the passage of time, it was realized that some cases of harsh punishments needed a second consideration before its implementation as the 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 society.

This has lead to debate of the necessity of pardoning power. On the other hand, various issues and 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. The 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 the President or Governor.

Kinds of Granting Pardon

Granting of pardon may be of two kinds.

1. Absolute

An absolute pardon may blot out the guilt itself. It does not amount to an acquittal unless the Court otherwise directs. The accused is released permanently without requiring any condition to be fulfilled.

2. Conditional

Under this pardon, the offender is let off subject to certain conditions. The breach of these conditions will lead to the revival of his sentence and he shall be subjected to the unexhausted portion of his punishment.

Jurisprudence of Granting Pardon

The philosophy underlying the pardon power is that 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 government, a country would be most imperfect and deficient in its political morality and in that attribute of the deity whose judgments are always tempered with mercy.”

The pardoning power is founded on the consideration of public good and is to be exercised on the ground of public welfare, which is the legitimate object of all punishments, will be as well promoted by a suspension as by an execution of the sentences.

Purpose of Granting Pardon

Pardon may substantially help in saving an innocent person from being punished due to miscarriage of justice or in cases of doubtful conviction.

The hope of being pardoned itself serves as an incentive for the convict to behave himself in the prison institution and thus, helps considerably in solving the issue of prison discipline. It is always preferable to grant liberty to a guilty offender rather than sentencing an innocent person. The object of pardoning power is to correct possible judicial errors, for no human system of judicial administration can be free from imperfections.

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.”[3]

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. Perovich[4] 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 India[5] 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 court’s power to ameliorate or avoid particular criminal judgments.”[6]. The opinion has been approved in Kuljit Singh v. Lt. Governor of Delhi[7], In Nar Singh v. State of Uttar Pradesh[8], 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.[9]

Philosophy and necessity for conferring of the power in the hands of the executive were stated in federalist no. 24 by Hamilton: “In seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth and which, if suffered to pass unimproved, it may never be possible afterwards to recall.

Power of Pardoning in various Countries

The modern practice of pardoning finds its origin in the British system in which it was a Royal Prerogative of the King to forgive. It also finds mention in the code of Hammurabi, a series of edicts that were developed in Babylon nearly 4,000 years ago. During the medieval period, the pardon was extensively used as a method of reducing overcrowding in prisons during the war, political revolt etc. In modern democratic countries, the power to grant pardon or clemency is vested in their executive heads.


The American Constitution gives the President the power to grant reprieves or pardons for offences against the USA, except in case of impeachment. However, this power is available only in case of violation of Federal law and pardon in the case of violation of a State law has to come from the Governor of the State concerned.


In the UK, the Constitutional monarch can pardon or show mercy to a conviction on ministerial advice.


In Canada, pardons are considered by the National Parole Board under the Criminal Records Act.


In India, the power to grant pardon is conferred upon the President of India and the Governors of States under Articles 72 and 161 of the Constitution of India.

Constitutional Provisions

Article 72:

(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—

  1. in all cases where the punishment or sentence is by a Court Martial;
  2. 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;
  3. in all cases where the sentence is a sentence of death.

Thus, Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute sentences in certain cases.

Article 161:

Power of Governor to grant pardons, 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 remissions 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

The Article deals with the power of the Governor to grant pardons, 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 remissions 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. Thus, this Article empowers the Governors of States to grant pardon, reprieves, respites or remissions of punishment or suspend, remit or commute the sentence of a person convicted of an offence against a law relating to a matter to which the executive powers of the State extends.

Pardon as a mode of mitigating the sentence of the accused has always been a controversial issue for a long time. Those who reject pardon as an effective measure of mitigating circumstances argue that the power to pardon is often misused by the executive. There is a possibility that the convict may procure his release from prison by exerting undue influence on the executive authority. To avoid these flaws, in most of the countries, there is a provision for judicial review of the pardon granted in the event of grounds for pardon being found unsatisfactory.

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 the 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 whether the judicial review has any limit. In Syed T.A. Haqshbandi v. State of J&K[10]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 a firm or concrete basis on properly established facts and further proved to be well justified in law, for being countenanced by the court in the 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 case[11] 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 considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent”[12]

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 the application of mind
  • Mala fide
  • Wholly on irrelevant considerations
  • Relevant material kept out of consideration
  • Based on arbitrariness[13]

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 Gujarat[14]. 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.

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 the 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 the 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 a 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 they operate in distinct fields and on different principles.

Now, it is a well-settled principle that power under Articles 72 and 161 is subject to judicial review.

Some Important Case laws

There has always been a debate as to whether the power of the executive to pardon should be subjected to judicial review or not. Supreme Court in a catena of cases has laid down the law relating to judicial review of pardoning power.

In Maru Ram v. Union of India[15], the Constitutional Bench of Supreme Court held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own and that the advice of the Government binds the head of the Republic.

In Dhananjoy Chatterjee alias Dhana v. State of West Bengal [16], the Supreme Court reiterated its earlier stand in Maru Ram’s case and said:

“The power under Articles 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 the Head of the state.”

The Supreme Court in Ranga Billa 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, the death sentence of one of the appellants was confirmed by the 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 the rejection of his 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 be reasoned.

Supreme Court once again in Kehar Singh v. Union of India[17] reiterated its earlier stand and held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter of right. The power exercisable by the President being exclusive of administrative nature is not justiciable.

In Swaran Singh v. State of U.P., the Governor of U.P. had granted remission of life sentence awarded to the Minister of the State Legislature of Assembly convicted for the offence of murder. The Supreme Court interdicted the Governor’s order and said that it is true that it has no power to touch the order passed by the Governor under Article 161, but if such power has been exercised arbitrarily, mala fide or in absolute disregard of the “finer cannons of constitutionalism”, such order cannot get the approval of the law and in such cases, “the judicial hand must be stretched to it.” The Court held the order of Governor arbitrary and, hence, needed to be interdicted.

In the early case of K.M. Nanavati v. State of Bombay[18], Governor granted reprieve under Article 161 which was held unconstitutional as it was in contrast with the Supreme Court rulings under Article 145.

Process of Granting Pardon in India

The process starts with filing a mercy petition with the President under Article 72 of the Constitution. Such petition is then sent to the Ministry of Home Affairs in the Central Government for consideration. The above-mentioned petition is discussed by the Home Ministry in consultation with the concerned State Government. After the consultation, recommendations are made by the Home Minister and then, the petition is sent back to the President.

Difference between Pardoning Powers of President and Governor

The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. Power differs in the following two ways:

  1. 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.
  2. The President can grant pardon in all cases where the sentence is given is a sentence of death but pardoning power of Governor does not extend to death sentence cases.

Pending cases of Pardon Before the President of India

It may be stated that as of July 2010, 21 mercy petitions involving 48 convicts’ mercy petitions are pending before the President. They include petitions filed by two accused in the former Prime Minister Rajiv Gandhi assassination case and a petition from 71-year old Shobhit Chamar who had killed an upper-caste adversary in Bihar. Besides these, three mercy-appeals and petitions for a pardon from four accused persons belonging to Veerappan’s gang for killing 21 policemen in 1993 and four Punjab terrorists accused of killing 17 people attending a wedding near Amritsar in 1991 and the mercy appeal of Sushil Maru accused of killing a five-year-old girl in 1995 and three Dalits from Bihar convicted for massacring members of an upper-caste organization are pending for disposal before the President.

Dhananjoy Chatterjee who was sentenced to death for the offence of rape and murder in 1990 and who had filed a mercy petition to Governor of West Bengal was hanged after a long period of fourteen years when his clemency plea was finally rejected by President of India due to the delay in exercising of the pardoning power.

The mercy petition of Afzal Guru who had attacked Indian Parliament in 2001 and who was sentenced to death in 2004 is still pending since its filing in 2006. In June, 2010, the Ministry of Home Affairs has made a recommendation to the President’s office for rejection of the mercy petition. Due to the lethargy of executive coupled with political interest, his clemency plea has not been considered yet.


The pardoning power of the Executive is very significant as it corrects the errors of the judiciary. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence. The process of granting pardon is simpler but because of the lethargy of the government and political considerations, disposal of mercy petitions is delayed. Therefore, there is an urgent need to make an amendment in the law of pardoning to make sure that clemency petitions are disposed of quickly. There should be a fixed time limit for deciding on clemency pleas.

Regarding the judicial review debate, pardoning power should not be absolute as well as Judiciary should not interfere too much in the exercise of this power. As the judicial review is a basic structure of our Constitution, pardoning power should be subjected to limited judicial review. If this power is exercised properly and not misused by the executive, it will certainly prove useful to remove the flaws of the judiciary.

By – L. Sanmiha

Content Writer @ Legal Bites

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

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

[3] 59 American Jurisprudence 2d, page 5

[4] 71 L. Ed. 1161 at 1163

[5] 1989 (1) SCC 204

[6] 69 L. Ed. 527

[7] 1982 (1) SCC 417

[8] AIR 1954 SC 457

[9] H.M. Seervai, Constitutional Law of India, 4th edition, p. 2096

[10] ( 2003) 9 SCC 592.

[11] Epuru Sudhakar & Anr. v. Govt. of A.P. & Ors. AIR 2006 SC 3385

[12] Id. para 11

[13] Id. Para 16

[14] AIR 1997 SC 3400

[15] 1981 SCR (1) 1196

[16] AIR 2004 SC 3454

[17] AIR 1989 SC 653

[18] 1962 AIR 605 1962 SCR Supl. (1) 567

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Updated On 6 May 2020 7:36 AM GMT


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