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During the 20th Century the concept of laissez faire lost it existence and there arose concept of Welfare State. With the upcoming of Welfare state there had been a vast and inevitable increase in the relationship between the parts and functionaries of the state. The governmental power was basically divided into
(i) the Legislature
(ii) the Executive and
(iii) 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 and be exercised by separate organs of the government. Accordingly 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 it should be noted that today the concept of welfare state is that of a modern state and the implication of doctrine of separation of power in its true sense is impossible. As Frakfurter J. says “Enforcement of rigid conception of separation of power would make modern government impossible.” This non enforcement has now laid down to a hectic situation where the three machineries of the state are now trying to over power each other. 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 is subjected to judicial review it would be a clear cut encroachment of the judiciary in the executive, and the separation of power is defeated. This invasion of judiciary whether could be justified or not, this would be evaluated in the essay. How come it is the need of the hour that Presidential Power of Pardon should be reviewed by judiciary? Whether Judicial Review disturbs the real spirit behind the concept of Pardon? Whether grounds be reviewed or decisions as a whole should be reviewed? Let us examine these questions in this article.
Concept of Crime and Punishment :Brief OutlineWhile directly jumping to the real topic I wanted to put forward some general conception about crime and punishment, because both of them are pre-existing factual which play a major role during a grant of pardon. There are several definition of crime one of them was given by Blackstone which speaks“ A crime is a violation of the public rights and duties due to the whole community considered as a community.” Further 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”.
From both the definitions of crime the single thing which could be extracted out is that the crime is not a crime to the individual person but it is a crime against the community. Further the concept of crime in this essay would be dealt with this regard.
The next question arises is that what is punishment and why it is given. As per the Oxford Dictionary “ Punishment is the action of punishing or the penalty imposed on someone for an offence” Punishment fulfills a social purpose of justice with aims to ensure the greater interests and harmony of the community as a whole. Thus it is clear that for the social cause the punishment is given so what is need of pardon and why to pardon a person?
Punishment (Capital):- Pardon for what and by whom?Generally the punishment dealt herewith is that of the capital punishment. When an act done by a person is penalized by the capital punishment the question arises whether the mercy pleading should be entertained, whether it is moral because generally such punishment in Indian prospective is only given in rarest of the rare cases. The defense given behind is that while every crime is an outrage that is deeply destructive of social and moral fabric, punishment can never undo the harm that has been suffered by the victims and the community. Therefore mercy pleading should be entertained and granted.
Thus now the question arises who can grant pardon in a welfare state. The answer for this question could well be traced out from the definition of Crime which was given by Prof. Kenny., it reads 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.”
The thing which should be kept in mind is that crown can grant pardon and such pardon should be given for those acts which can be pardoned. In furtherance to it the Pardon shall only be given in those cases where it is beneficiary to the society.
Crown and President: Power to PardonIn a monarchy the crown was given the power to pardon. But 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. Thus if the Prof Kenny’s definition is read in Indian context the power should lie with the President, it happens so but with few stipulations.
Under Article 72 of the Indian Constitution the Indian President is empowered to grant pardon, he can reprieve, respite or remit the punishment.
The Article 72 reads:(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-
(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) 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.
By the virtue of this article the president can grant pardon but the materialistic fact is that whether such power is an absolute one because the word “Shall” in clause (1) of the Article is ambiguous. Apart from it was also held that this power of pardon shall be exercised by the President on the advice of Council of Ministers. Let us see what is the scenario in other parts of the world regarding this power.
A Global View of Presidential Pardon(i) United States of America
According to the Article II Section 2 of the U.S. Constitution the President can grant pardon except in the cases of impeachment. Unlike Indian President the American President has the absolute power, such power cannot be questioned or blocked by the court or the congress. In case of misuse the only act which could be done is call for impeachment of the President. Thus there is no question of any judicial review.
Recently the question of granting of Pardon was in lime light in Sarabhjit’s Case. By the virtue of the Article 45 of the Pakistan’s Constitution the President has an absolute power to grant pardon, reprieve, respite and remit, suspend or commute any sentence passed by any court, tribunal or authority. The power cannot be questioned.
(iii) France, Germany and Russia
In France pardon and act of clemency are granted by President of France who has the sole discretion and power is non questionable and absolute.
A German President has pardoning power which he can transfer to someone else such as chancellor or the minister of justice.
An absolute power of pardon is given to the Russian President through the Article 84 of the constitution.
Thus it could be easily seen that wherever the power of pardon is given to the President, it is given absolutely then question arises that why the framers of Indian Constitution didn’t armed the president with an absolute power to pardon.
Pardoning Power of President in IndiaAs earlier discussed the pardoning power of the President is not an absolute one but is governed by the advice of the Council of Ministers. Now we should think about what would have been the real issue in the mind of the framers of the constitution for not imparting the President an absolute power. One thing should be made clear first that the framers were of the view that there should be a capital punishment and such capital punishment shall be pardoned on grounds of morality after a mercy pleading by the President, it could be said that the framers just wanted to put a check on the power as if the power would have been an absolute it could be possible that a soft hearted President would pardon most of the mercy pleaders, for this it was the council of ministers who had to review it and give their advice.
Thus the framers had the inception that the misuse of the power would be guarded by the Council of Ministers, they had a good faith on them but today the time has changed, whenever a government comes in existence (if absolute) the Council of Ministers appointed are generally having an absolute power and as Lord Acton has said “Power tends to corrupt and absolute power corrupts absolutely” the absolute power had encrypted a layer of corruption and due to it a danger of misuse of power is always existing, this can only be checked by judiciary.
Concept of ReviewAccording to the Merriam Webster Dictionary of Law “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 an independent judiciary is the cardinal feature, and an it assures faith enshrined in the Constitution. The need for independent and impartial judiciary is the command of the Constitution and call of the people. Judicial review in India can e 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 as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime.
The question which arises here is that whether the judicial review has any limit.
In Syed T.A. Haqshbandi v State of JandK 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”.
Pardoning Power and Judicial Review
Recently the pardoning power of governor was put under judicial review in the case of Epuru Sudhakar and Anr. Vs Govt. of A.P. and Ors .Before discussing the factual situations of the case let us revert back to some of the old cases.
In Kuljeet Singh Vs Lt. Governor of Delhi it was held that the President’s Power
Under Article 72 will 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.
But 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. In this case SC 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 Epuru Sudhakar Case the immunity of the pardoning power of governor from judicial review came up. SC 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 SC bench of Justices S H Kapadia and Arijit Pasayat warned that the exercise of the power would be tested by the court against the maintenance 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,” the bench warned.
Justice Kapadia, while concurring with the main ruling delivered by Justice Pasayat, sought to remind “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,” he said. Thus this judgment reiterated the settled position of law that exercise or non-exercise of the pardoning power by the President or Governor would not be immune from judicial review.
The biggest question which could be laid down against the conception of Judicial Review of the power is that, a person pleads for mercy when all the doors of judiciary closes for him, in that case if president grants pardon on some moral and humanitarian ground whether in that case if judicial review is done then how come a judiciary would close its eyes from the previous judgments which it has given right from the lower courts against the pleader. It is more or less clear that it would revoke the pardon and would revert back to it’s final decision. As per my view the judiciary when given a chance to review a pardon should not go by the legal circumstances but it should deal with the moral values.
Questions are now arising on several clemency decisions given by various US Presidents. Amongst which most of them are given by Bill Clinton. Bill Clinton granted about 395 pardons during his presidency amongst which 140 were issued on his final day in his office. It could be clearly seen that pardon power could be misused. Recently a house judiciary Committee which was hearing into the decision to commute the sentence of former White House aide I.Lewis “Scooter” Libby has said that it would review all the previous pardon given by various presidents.
Thus when the President’s Absolute power to grant a pardon can be brought under judicial review then why can’t the power granted to Indian President be reviewed.
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”.
Thus in my opinion it is the need of the hour that judiciary should prevail and pardoning power should be subjected to judicial review, if it is done so the judiciary would definitely come up with flying colors and would not let down the biggest democracy of the world.
(i) Constitutional Law of India - Dr. J. N. Pandey ( 44th Edition)
(ii) Constitutional Law f India - H.M. Servai (A Critical Commentary) Third Edition
(iii) The Constitution of India - S. Sarkar and J.J. Munir 2003 Edition
(iv) Administrative Law - Dr. J.J. R. Upadhyay 5th Edition
(v) Criminal Law - P.S.A. Pillai (9th Edition)
(vi) Law of Crimes - Justice Raghavan (3rd Edition)
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ISBN No: 978-81-928510-0-6