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Scope of Judicial Review of decision taken by the President of India in Mercy Petition

A pardon is an act of mercy, forgiveness, clemency. The concept of pardon is an artifact of older times, of an age where an omnipotent monarch possessed the power to punish or remit any punishment. It became a symbolic attribute of a god-like king having control over his subject's life and death. The linking of punishment and pardon are at least as old as the Code of Hammurabi, where the prescription of harsh penalties was balanced by rules to limit vengeance and specify mitigating circumstances. It was exercised at any time either before legal proceedings are taken or during their pendency or after conviction.

In the words of Seervai 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.

The power to grant pardon, as envisaged in Articles 72 & 161 of Constitution of India can achieve its aim and object only when they are exercised with a sense of responsibility. The power of Judicial review provides a kind of check over misuse of this extraordinary power in the hands of executive organ of the State. The purpose of Articles 72 & 161 of the Constitution of India is to provide a human touch to the Judicial process. If this human touch is not exercised properly, the very purpose of mercy provisions is defeated.

Whether it is open to rescind or cancel an order of pardon which has been granted on a basis which is subsequently found to be unfounded or which has been obtained by misrepresentation or fraud?

  1. Articles 72 & 161 of Constitution of India do not expressly provide for rescission or cancellation of an order of pardon. However, recourse can be had to Section 14 & section 21 of the General Clauses Act, 1897, in appropriate cases.

    Section 14 and section 21 of the General Clauses Act, are set out in these terms:

    14. Powers conferred to be exercisable from time to time:
    1. Where, by any Central Act or Regulation made after the commencement of this Act, any power is conferred then unless a different intention appears that power may be exercised from time to time as occasion requires.
    2. This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887.

      21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws:
      Where, by any Central Act or Regulation, a power to issue notifications orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like Page 15 manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
  2. The aforesaid Rule of Interpretation as embodied in Section 14 & Section 21 of the General Clauses Act, 1897, has been applied to the Constitution of India in [S. V. G. Iyengar Vs State of Mysore, AIR 1961 Mysore 37] and [Sampat Prakash Vs State of J&K, AIR 1970 SC 1118]. In Sampat Prakash Vs State of J&K it was held that;

    This provision is clearly a Rule of Interpretation which has been made applicable to the Constitution in the same manner as it applied to any Central Act or Regulation. On the face of it, the submission that Section 21 cannot be applied to the interpretation of the Constitution will lead to anomalies which can only be avoided by holding that the rule laid down in this section is fully applicable to all provisions of the Constitution.

    Reference is invited to the Division Bench Judgement of the Mysore High Court in [S. V. G. Iyengar Vs State of Mysore, AIR 1961 Mysore 37], where, it has been held that Section 14 & Section 21 of General Clauses Act, 1897, by virtue of Article 367 of Constitution of India apply to exercise of powers under the Constitution as well. [see Para 17 at Page 40].

    It is clear from the proviso to Article 309 that the rules which shall be effective until the appropriate Legislature makes a law are not only the rules made for the first time under that provision but include also those which are made from time to Page 16 time in the exercise of power conferred by S. 14 of the General Clauses Act, 1897 and also those rules as modified, amended or varied in the exercise of the power conferred by Sec. 21 of the General Clauses Act.

    Accordingly, if subsequently it comes to the knowledge of the President or the Governor, i.e., the Central or State Government, that pardon has been obtained on the basis of a manifest mistake, or patent misrepresentation or fraud, the same can be rescinded and cancelled.
  3. Attention is invited to Section 432 of the Code of Criminal Procedure, 1973, which lays down the consequence for non-fulfilment of any condition on which remission has been granted.

    Section 432 (3) of Indian Panel Code, 1860 reads as under:
    (3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may, cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
  4. The position in U.S.A. is summed up in 67A Corpus Juris Secundum, P. 21, Para 16 as follows:
    There is authority for the view that a pardon may be held void where it appears from the pardon that the pardoning power was misinformed; but there is also authority for the view that intentional falsehood or suppression of truth is necessary, and that misinformation given in good faith and in the belief in its truth is insufficient to avoid a pardon…..A pardon procured by false and fraudulent representations or by intentional suppression of the truth is void, even though the person pardoned had no part in perpetrating the fraud.

See also 59 American Jurisprudence 2d Para 42 at Page 28:
It has often been broadly stated that a pardon obtained by fraud is void, as, for instance, where it may be reasonably inferred from the language of a pardon, considered in connection with the record of the cause in which it was granted, that the executive was deceived or imposed upon by those procuring it, by false statements or omissions to state relevant facts, or by the suppression of the fact that the judgment of conviction has been appealed from.

Other Courts, however, hold that the term void as thus used means simply that a pardon obtained by fraud may be declared to be void in a proceeding authorized by law, before a Court having jurisdiction for the purpose, with ample opportunity to the person holding the pardon to defend.

Judicial review when no reasons are assigned for granting pardon

  1. In [Kehar Singh & Anr. Vs Union of India & Anr 1989 (1) SCC 204], the Hon'ble Supreme Court made an observation at Page 216 that,

    There is no question involved in this case of asking for reasons for the Presidents' order.

    It is respectfully submitted that this observation must be understood in the context of the contention that the Petitioner or party must be given reasons. The question whether reasons can or cannot be disclosed to the Court when the order is challenged was not discussed. In any event, it is submitted that absence of obligation to convey reasons to the Petitioner does not mean that there should not be legitimate and relevant reasons for passing the order.
  2. Obligation to give reasons to a party is entirely different from obligation to apprise the Court about the reasons for the action when the action is challenged in Court. This aspect was considered by the Hon'ble Supreme Court in the case of [S. R. Bommai Vs Union of India, (1994) 3 SCC 1], in the context of exercise of power under Article 356 of the Constitution of India. Attention is drawn to the observations at Page 109, Para (g) & (h) and at Page 110, Para (a) of the Judgment which are as follows:

    When the Proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there exists material which showed that the Government could not be carried on in accordance with the provision of the Constitution. Since such material would be exclusively within the knowledge of the Union Government, in view of the provision of Section 106 of the Evidence Act, 1873 the burden on proving the existence of such material would be on the Union Government. [emphasis supplied.]
  3. The position if the Government chooses not to disclose the reasons or the material for the impugned action was stated in the words of Lord Upjohn in the landmark decision in [Padfield & Others Vs Minister of Agriculture, Fisheries and Food & Others, (1968) 1 All E.R. 694] at Page 719: Page 19

    .. if he does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion..
  4. The same approach was adopted by Justice Rustam S. Sidhwa of the Lahore High Court in [Muhammad Sharif Vs Federation of Pakistan & Ors., PLD 1988 Lah 725] where the Learned Judge observed as follows at Page 775, Para 13:

    I have no doubt that both the Governments are not compelled to disclose all the reasons they may have when dissolving the Assemblies under Articles 58 (2)(b) and 112 (2)(b). If they do not choose to disclose all the material, but only some, it is their pigeon, for the case will be decided on a judicial scrutiny of the limited material placed before the Court and if it happens to be totally irrelevant or extraneous, they must suffer. [emphasis supplied].

    Justice Sidhwa's aforesaid observations have been approvingly referred to in the Supreme Court decision in S. R. Bommai (supra) at Page 98, Paras (f) – (g).
  5. Justice Hansaria as a Judge of the Gauhati High Court in the case of [Vamuzzo Vs Union of India (1988) Gauhati Law Journal 468] adopted the approach of Justice Sidhwa, at Page 517. The Learned Judge gave time to the Government of India to inform the Court about the materials upon which the President's Proclamation under Article 356 was passed in the case of the State of Nagaland. Page 20

    The relevant portion of Para 47 at Page 517 is set out below:
    For this purpose we grant 10 days' time. If the (sic) within this period they would fail to produce the material we shall have to render our opinion on the basis of the materials made available to us. If they would fail to do so, this Court would have no other alternative but to decide the matter on the basis of the materials placed before it. In this connection reference may be made to what was stated by Rustam Sidhwa J. in the aforesaid case of Lahore High Court [Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah 725].

    It may be mentioned that Justice Hansaria's views were not shared by the other Judge, Chief Justice A. Raghuvir. It is significant that Justice Hansaria's view has been approved by the Hon'ble Supreme Court in S. R. Bommai, supra, see page 284, Para (a) – (b) and (d):

    Hansaria, J., however, took a contrary view. The Learned Judge held that the material which formed part of 'other information' but has not been produced before the court, does not form part of the advice tendered by the Council of Ministers to the President. The Court is, therefore, entitled to see the said material and for that purpose the Union of India must be given ten days' time for producing the same. If, however, they decline to do so, the court would have no alternative but to act upon the present material and the Union of India will have to take consequences of such a course…..the view taken by Hansaria J. (as he then was) must be held to be the Page 21 correct one and not the view taken by the learned Chief Justice.
  6. It is respectfully submitted that if the government chooses to maintain an inscrutable face of the sphinx in a case where the court on account of surrounding facts and circumstances is prima facie satisfied that impugned action is apparently not in conformity with the constitution, the burden shifts on the Government and if it fails to give reasons or disclose the material on which the impugned action is based, it is their pigeon.

    The Court's power of Judicial review which is a basic feature of the Constitution of India cannot be incapacitated by a studied and deliberate silence on part of the Government.
  7. Article 74 (2) of Constitution of India does not debar disclosure of relevant material on which the order is based. See Bommai (supra), Page 148, Para 153:

    Article 74 (2) is not a bar against the scrutiny of the material on the basis of which the president had arrived at his satisfaction.

See also conclusion (6) at 297, Para 434:
Article 74 (2) merely bars an enquiry into the question whether any and if so, what advice was tendered by the Ministers to the President. It does not bar the court from calling upon the Union Council of Ministers (Union of India) to disclose to the court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice. Even if the material is looked into by or shown to the President, it does not partake the character of advice. [emphasis supplied.]

Scope of Judicial review regarding power of remission

  1. The grounds on which an executive decision under Article 72 or Article 161 of Constitution of India can be challenged, have been authoritatively laid down in [Maru Ram Vs Union of India & Anr, 1981 (1) SCC 107] and [Kehar Singh & Anr. Vs Union of India & Anr 1989 (1) SCC 204]. In view of this settled legal position the contention that administrative law principles are inapplicable to exercise of powers under Article 72 & Article 161 is futile.
  2. It is submitted that the exercise of power of remission is subject to judicial review to the same extent and manner as exercise of the power of pardon. The contention that as remission is different from pardon and therefore, different considerations ought to apply, is fallacious and would lead to an inconsistent application of constitutional provisions. Acceptance of this submission will permit the executive to grant a pardon in effect and substance under the guise of remission or reprieve. Such a contention should therefore be rejected.

Non–exercise of the power of pardon

  1. Articles 72 & 161 confer a power or discretion coupled with duty and obligation. The Public Welfare and the Welfare of the Convict are guiding principles for the exercise of both the grant and non – grant of pardon.
  2. If in a given case where Public Welfare and the Welfare of the Convict require, rather necessitate that pardon be given, non –grant of pardon would tantamount to failure to perform duty and obligation in Article 72 & 161 of Constitution of India. For example, suppose if a convict has substantially served term of imprisonment, is of advanced age and is suffering from a critical illness and there is no material, whatsoever, that if this convict is released, he will be a menace to society, then in such a situation, the non – grant of pardon would amount to a failure to perform duty and obligation in Article 72 & 161 of Constitution of India.
  3. It is well settled principle of law that when a capacity or power is given to a public authority there may be circumstances which couple the power with a duty to exercise it [see Alcock Ashdown & Company Limited Vs The Chief Revenue Authority AIR 1923 PC 138 at Page 144]. This statement of law was approved by the Supreme Court in [The Chief Controlling Revenue Authority Vs The Maharashtra Sugar Mills Limited, AIR 1950 SC 218 at Page 221, Para 8.

In a given case, the Government may not grant pardon, though it is eminently required for vindictive and political reasons.

The question as to whether the Judicial review has any limit. In [Syed T. A. Naqshbandhi & Ors. Vs State of J&K & Ors., (2003) 9 SCC 592], 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 other statutory rules, the same cannot be challenged by making it a justifiable issue before the Court.

The [Epuru Sudhakar & Anr. Vs Govt of Andhra Pradesh & Ors., AIR 2006 SC 3385], once again brought into 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. It 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. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be the subject to the Rule of Law. 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 Rule of Law principle comprises a requirement of Government according to law. The ethos of Government according to law requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, 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.

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. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public consideration alone. The President and the Governor are the sole Judges of the sufficiency of facts and of the appropriating of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of Exclusive Cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutation.

In the case of [Satpal & Anr. Vs State of Haryana & Ors., 2000 (5) SCC 170], the Supreme Court observed that the power of granting pardon under Article 161 of Constitution of India is very wide and does not contain any limitation as to the time at which and the occasion on which and the circumstances in which the said powers could be exercised.

Thereafter the Court held as follows:
The said power being a constitutional power conferred upon the Governor by the Constitution is amenable to Judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is mala fide one or the Governor has passed the order on some extraneous consideration.

The principles of Judicial review on the pardon power have been re-stated in the case of [Bikas Chatterjee Vs Union of lndia, 2004 (7) SCC 634].

In [Mansukhlal Vithaldas Chauhan Vs State of Gujarat, 1997 (7) SCC 622], it was inter-alia held as follows:

25. This principle was reiterated in [Tata Cellular Vs Union of India 1994 (6) SCC 651] in which it was, inter alia, laid down that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality. Its concern should be:

  1. Whether a decision-making authority exceeded its powers?;
  2. committed an error of law;
  3. committed a breach of the rules of natural justice;
  4. reached a decision which no reasonable tribunal would have reached; or 5. abused its powers.

Concluding Observations
The power of pardon has been made subject to Judicial review. It is a good development in so far as it will prevent a misuse of this important constitutional power by unscrupulous politicians in favour of people with power and influence. However, it may serve to further increase the burden of cases on the Courts and altogether prolong the Judicial process. It may also prevent the executive from utilizing this power for reasons that although may not strictly be in conformity with constitutional principles, may nevertheless be in the interest of the State. Given the bizarre twist that our polity has taken in recent times, it seems to be self-evident that the only protection we have from complete insanity is Judicial review.

Thus, while the trend towards greater Judicial scrutiny of the power of pardon is undoubtedly a welcome one, the Judiciary must leave the executive with a window of discretion in the exercise of the same. If we do not combine democratic governance with firm governance, we shall have no one except ourselves to blame for lawlessness resulting from the abuse of the provisions relating to pardon by criminals guilty of heinous crime.

Written By: Damini Singh Chauhan, B, A LL. B, University of Jammu. LL.M, Jindal Global Law School.
E-mail; [email protected]

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