Judicial Review: An Overview Of President’s And Governor’s Pardoning Power
Article 72 of the Indian Constitution provides the President of India with
the pardoning power, in which the President can grant pardons, and can "suspend,
remit or commute" sentences in certain cases. Article 161 of the Indian
Constitution provides the Governor of the states with the pardoning powers.
We can understand the term "Judicial Review" as; "it is a form of court
proceeding, usually in Administrative Court where the lawfulness of decisions or
actions are reviewed by the judge. Where there is no effective means to
challenge any decision, judicial review is available. The main concern behind
judicial review is that whether the law has been correctly applied with right
procedures have been followed or not."
No matter how broad the power of pardon, commutation and release (Articles 72
and 161) is, it must maintain a sensible steady course. The scope and reach of
the pardoning power as it exists in India are aptly stated by Justice Krishna
Iyer in these terms. This research paper examines the development of the
pardoning power in India as well as the pertinent and significant issue of
judicial review of that power.
This also analyses the pardoning power in light of pertinent constitutional
provisions, while it discusses the topic in general. The crucial portion studies
the President's pardoning power from the standpoint of its judicial handling.
Judicial Review: History And OverviewThe power of the judiciary to review and determine the validity of a law or an
order is the ultimate power given to our judiciary system. This power is
described as "judicial review". The "process established by law" principle,
which governs this system in India, has one test: Whether a law was produced via
legal methods or not; if not, it will be deemed unconstitutional.
In terms of the possibility of judicial review, the Indian Constitution is more
oriented toward the U.S. Constitution than the British one. In contrast to
India, where the parliament is not supreme and cannot enact laws, no court in
Britain has the authority to declare any law passed by the British parliament
unlawful. Any laws implemented there are always subject to judicial scrutiny.
Our Constitution has awarded many sections that cover the various aspects of the
judicial review system. Articles 13, 32, 131�136, 143�226, 145�246, 254�251 and
372 are among them. Below is a quick explanation of each of these articles:
ARTICLE 13 declares that "any law which contravenes any of the provisions of the
part of the fundamental rights shall be void
ARTICLE 32 provides the "right to constitutional remedies", it means that the
person has the right to move to the supreme court if his/her fundamental rights
ARTICLE 226 empowers the high court to, "issue directions, orders or writs in
the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari.
Such directions, orders or writs maybe issued for the enforcement of fundamental
rights or any other purpose."
ARTICLE 143 gives the supreme court the authority to exercise advisory
jurisdiction. "The president may seek opinion of the supreme court on any
question of law or fact of public importance on which he thinks it expedient to
obtain such an opinion."
In India, the rule of law and the constitution is considered to be the supreme
law. The Constitution of India is the "law of the land" and if any law that is
passed, is violating the basic structure of the constitution, the Indian
Judiciary has the power to nullify that law.
This judicial review system, which the Indian parliament adopted from the US
Constitution, divides power between the central government and the states and
does not grant the legislature any absolute authority. The supreme courts also
have the authority to examine legislation passed by parliament and state
legislatures. This gives the courts more authority and provides a tool for
Laws already in effect at the state and central levels as well as executive and
constitutional amendment ordinances are subject to judicial examination. The
legislation included in the ninth schedule of the Indian Constitution are not
subject to judicial review. There is no appeal available for the supreme court's
decision because all courts in the nation follow its interpretations.
What are the pardoning powers provided to the President?According to Article 72 of the Constitution, the President of India has the
right to use the pardoning power with regard to a death sentence, an offence
involving a legislation related to the executive power of the Union, or a
punishment or sentence by a Court Martial.
The President has broad pardoning power that covers the entirety of India. The
specifics of each situation will determine the extent of the President's
authority. The President may use his or her pardoning authority to protect a
person from the repercussions of an offence or from a punishment related to that
offence. Thus, according to legal experts like Balakrishna, a pardon must be in
relation to an offence and not just a mere violation of a provision of a
Pardoning powers of governorThe power to pardon is given to Governor under Article 161 of the Indian
Constitution. The Article discusses the Governor's authority to commute,
suspend, or remit sentences in specific circumstances, as well as to give
pardons, among other things. Any person guilty of any offence against any law
related to an issue to which the executive power of the State extends may get a
pardon, reprieve, respite, or remission of penalty, or their sentence may be
suspended, remitted, or commuted. Accordingly, this Article gives the governors
of the states the authority to commute, suspend, or reprieve the sentence of a
person guilty of a crime against a law pertaining to a subject under the state's
The role of judicial review in pardoningThe President's ability to use the pardoning power at his or her discretion or
if he is constrained by the recommendations of the Council of Ministers is one
of the key points of disagreement. The President cannot use his or her own
judgement in this regard, the Supreme Court explicitly said in the
precedent-setting case of Maru Ram v. Union of India, and instead relies
on the aid and advice of the Council of Ministers. In this landmark decision,
Justice Krishna Iyer made it very plain what the law was on the matter, stating
that the Governor was merely a colloquial term for the State Government and the
President was an abbreviation for the Central Government.
However, it has been observed that the President's use of the pardoning power on
the Council of Ministers' advice is not without its own set of issues. Lawyers
like Thakur assert that since Kehar Singh killed Prime Minister and Congress
leader Smt.Indira Gandhi and the Congress was then in control at the Center, the
guilty parties' plea in this case could never have been accepted. Additionally,
this issue is not resolved in a coalition administration either because the
council is unable to provide the President with a free and objective opinion
because of competing party interests. This causes further issues and, in the
opinion of many academics, supports the need for judicial review of the
President's pardoning power.
The case of K.M. Nanavati v. State of Bombay is one of the earliest
seminal cases in which the Court examined the issue of an executive's ability to
pardon. Due to conceptual similarity and relevance to the current case, the
court's concern with the Maharashtra Governor's use of his pardoning authority
is examined below. The Bombay High Court found Indian Navy Commander Nanavati
guilty of murder and sentenced him to life in prison.
In spite of this, the Bombay Governor postponed his punishment while he filed an
appeal with the Supreme Court. It is important to note that at the time, the
Court had established a regulation under Article 145 of the Constitution stating
that, unless the Court determines otherwise, a petitioner serving a life
sentence must first relinquish his or her sentence before the petition may be
heard. Nanavati argued before the Supreme Court that he was immune from the same
because of the Governor's decree.
By a vote of 4-1, the Supreme Court ruled that the Governor's order was
unconstitutional and that it would only be effective while the matter was
pending before the court at the time the petition for special leave was filed.
Seervai argued in court that while the court may delay a sentence or provide
bail while the special leave petition was being heard, this would not impact the
executive's ability to pardon, in the broadest definition of the word.
This prompted the Court to examine the pardoning power's nature and reach. The
Court claims that the ability of the Court to suspend the sentence while the
exceptional leave is pending overlaps with the Executive's authority to do so.
The rule of harmonic construction between the two governmental organs was
therefore adopted by the Court. The majority ruling, according to Seervai,
"obviously misapplied the principle of harmonic construction, because it created
disharmony between two fundamental provisions when none existed."
A well-known example of how the law has changed as a result of judicial
interpretation is the judicial review of the pardoning power. Beginning with a
strong reluctance to even consider the topic, the trend has since changed to one
that is more moderate and on the centre ground. In order to define their role in
cases of review, the courts have mainly agreed upon the verdict rendered in Maru
Ram's case and the restrictions placed therein.
There is general agreement that the court cannot review the decision's merits
other than in instances of arbitrariness, malice aforethought, or ignorance of
some important information. Even while the courts have occasionally gone over
the fine line that limits the extent of their review, as established in Maru
Ram's case, it is believed that such instances are an exception. Since the
Court has barely deviated from the course indicated by the Maru Ram verdict, if
at all, these should be disregarded.
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