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?
- 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
Section 14 and section 21 of the General Clauses Act, are set out in these
14. Powers conferred to be exercisable from time to time:
- 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.
- 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.
- 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.
- 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.
- 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
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.
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
- 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
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.
- 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
- 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..
- 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).
- 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.
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.
- 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.
- 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
Scope of Judicial review regarding power of remission
- 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.
- 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
- 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.
- 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.
- 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
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:
- Whether a decision-making authority exceeded its powers?;
- committed an error of law;
- committed a breach of the rules of natural justice;
- reached a decision which no reasonable tribunal would have reached; or
5. abused its powers.
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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