By: Anushka Sharma
Right to life and personal liberty are two of the most cherished attributes of the modern civilised society and the pertinence of these rights has given rise to the concept of pardon. The concept of pardon in the contemporary setup primarily addresses the issue of the fallibility of the human judgement, which might manifest itself in judicial decisions. It has been observed in the case Kehar Singh v Union of India (hereinafter ‘Kehar Singh’) that the power to scrutinize the validity of the denial of the right to life must be vested in a higher authority which is generally the highest dignitary of the state.
Pardon is an act of grace of the governing power of a state which might mitigate or repudiate the punishment given to a person by the legal system and restore the rights and privileges previously denied. In India, like the USA, the right to pardon is a part of the constitutional scheme and is not in the nature of a prerogative or an act of grace as in England. It is delineated under the Articles 72 and 161 of the Indian Constitution, which gives the President and the Governor of the States the power to grant pardon and to reprieve, respite or remit the punishment of a convict.
THE CONSTITUTIONALITY OF PARDON
The Indian Courts have been confronted with the question of whether the presidential pardon is subject to judicial review or not in numerous cases. In the USA, the Presidential power to pardon is considered absolute and has been rarely questioned by the courts. Whereas, in England the pardon is granted by the crown (on the advice of the government), which has also rarely been the subject matter of judicial review. Compared to these jurisdictions, the Indian courts yield a greater power of judicial review. The Supreme Court, most recently in the case of Epuru Sudhakar v Government of Andhra Pradesh (hereinafter ‘Epuru Sudhakar’) confirmed that the pardon granted by the President can be subject to judicial review and laid down the specific grounds for judicial intervention. This paper argues that judicial review of presidential pardon does not render it redundant and a limited judicial review is a necessity in our country in order to protect the provision from political abuse.
TO INTERVENE OR TO NOT INTERVENE
In the judgement of Kehar Singh, the Supreme court, while confirming the American view of presidential pardon opined that the right to grant pardon is a constitutional right in India as opposed to a prerogative or a mere act of grace bestowed on the subject by the king. Owing to the constitutional nature of the right to grant pardon it is the responsibility of the President to carry it out diligently. Now, the constitution of India has vested in the judiciary the responsibility of interpreting the provisions of the constitution. The judiciary is also regarded as the ultimate interpreter of the constitution and it is the obligation of the courts to determine whether an authority is functioning within the limits prescribed by the constitution. Thus, a presidential pardon is a provision enshrined in the Indian Constitution it logically follows that it is open to the judiciary to interpret the said provision like any other provision of the constitution. Additionally, since it is established that the nature of the power to grant pardon is not prerogatory but is rather constitutional, there exists no constitutional explanation to immunize it from judicial scrutiny in the cases of misuse.
An objection that can be raised at this juncture is that the primary aim of the presence of a provision of presidential pardon is to rectify the errors made by the judiciary while delivering the judgement, and therefore if the judiciary itself again reviews the decision it defeats the purpose of having such a provision in the first place. The response to this argument lies in the fact that the courts while hearing a case for the misuse of the pardoning powers deal primarily with the procedural aspect of the decision. They do not rehear the case on merits. Instead, they merely check if the decision taken by the President is backed by reasoning and is taken within the ambit of his constitutional power. The power to grant pardon is a constitutional duty of the President and cannot be discharged arbitrarily without sound reasoning which is what the courts seek to check via judicial review, and therefore the question of rendering the purpose of the provision futile does not arise here.
Additionally, if this argument is to be accepted and the power to grant presidential pardon is to be made immune to judicial review, then there is always a risk of it being manipulated to the benefit of the ruling political party, because in India the President is bound by the advice of the home ministry and cannot grant pardons autonomously. There have been several cases in which blatantly erroneous pardons were granted to fulfil political motives. In Swaran Singh v State of UP, an MLA of Uttar Pradesh who was accused of murder and have five other cases of serious offences against him filed a plea to grant pardon to the Governor which was dismissed. Later, a second mercy petition was filed by him to the same Governor who then accepted it based on a report by the police officials who recommended remission based on humanitarian grounds. In another case of Satpal v State of Haryana, a pardon was granted to a member of the Bhartiya Janata Party who was accused of murder and criminal conspiracy on January 25, 1999, whereas he surrendered to the court on February 2, 1999. Cases such as these exemplify the blatant politicization of the power to grant pardon which makes it imperative that the courts exercise limited judicial review over the provisions of granting a pardon.
Lastly, the contention that can be raised here is that the act of the court overturning the pardon which is already granted by the President can seriously undermine the value of the constitutional provision of Presidential pardon and may render it vain. In my opinion, this argument is fallacious as it presumes the intervention of judiciary in all the pardons issued by the President/Governor. The courts only intervene in the President’s/Governor’s decision in these cases if there is a blatant misuse of the provision and if it is in the interest of justice to do so. Most recently in the Epuru Sudhakar case, Supreme Court laid down the grounds of judicial review as:
(1) if the order was passed without the application of mind;
(2) it is mala fide;
(3) it was based on irrelevant or extraneous considerations;
(4) the relevant material was not considered;
(5) the order was arbitrary.
Previously the Supreme Court in Kehar Singh clearly specified that “the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram v Union of India.” The court clarified that it is primarily concerned with the area and scope of the presidential power rather than the merits of the decision.
Since here the courts are selectively subjecting the presidential orders for judicial review it cannot be said that it has rendered it redundant. There is no compulsory requirement of every grant of pardon to pass through the judicial scanner, it is only in exceptional circumstances and based on fixed guidelines that the courts have intervened. This is vital as the recent cases have illustrated because of the peculiar nature of the Indian democracy. Though there exists a fear of judicial encroachment into the executive domain here but on the balance of probabilities it might to more deleterious to give an absolute and unbridled power of pardon to the resident as it might lead to the establishment of an easy escape route for those close to the ruling political party.
The issue that was analysed in this paper was whether the judicial review of presidential pardon makes it redundant per se. The answer to that, in my opinion, is no, because the judiciary has set fixed guidelines for its intervention in such cases and has only intervened in the exceptional ones. All cases of presidential pardon are not compulsorily subjected to judicial scrutiny and even if there is an intervention by the judiciary it is primarily based on procedural grounds and is rarely based on the merits. Hence there is no question of the provision being rendered redundant. Though there exists a fear of judicial overstepping here, the threat of the manipulation of this provision at the hands of political parties necessitates the existence of a limited judicial review.
 MP Jain, Indian Constitutional Law (7th edn, LexisNexis 2014) 166.
 HM Seervai, Constitutional Law of India: A Critical Commentary, vol 2 (4th edn, Universal Law Publishing 2005) 2097.
(Anushka is currently a student at West Bengal National Law University of Juridical Sciences, Kolkata.)