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The clemency power and judicial review

 The clemency power and judicial review

The clemency power of the President is not an absolute one but it is governed by the advice of the Council of Ministers. The basic development served by the judicial system in the context of the Article 72 and 161 allowing the judicial review. Judicial review is an independent judiciary that assures the faith embodied in the Constitution of India. 

There has always been a debate as to whether the power of the executive to pardon should be subjected to judicial review or not. In a series of cases, the Supreme Court of India has laid down the law relating to judicial review of clemency power. 

In Maru Ram v. Union of India (1981) the constitutional bench of the Supreme Court held that the power to grant pardon under Article 72 is to be exercised on the advice of the Council of ministers. The Supreme Court, in this case, laid down emphasis on the British practice while arriving at this conclusion regarding the Indian position. 

The Supreme Court in Dhananjoy Chatterjee alias Dhana v. State of West Bengal(1994) case reiterated its earlier decision in Maru Ram and said that ‘the power under Article 72 and Article 161 can be exercised by the Central and State Governments, not by President and Governor on their own. The advice of the appropriate government binds the head of the state’. In this case, the appellant Dhananjoy, a security guard was challenged and tried for rape and murder and also for the offense under Section 380 of Indian Penal Code, for committing theft of the wristwatch of Hetal Parekh, an 18 years old girl in her apartment. 

In the case of Kehar Singh v. Union of India (1989) a five-judge bench of the Supreme Court has examined the scope of the President’s pardoning power under Article 72 in detail. The petitioner, Kehar Singh, was convicted for the crime of murder for assassinating Prime Minister Smt. Indira Gandhi’s sentence to death was confirmed by the High court and his appeal to the Supreme court was also dismissed. He further filed a petitioner to the President for the grant of pardon. The President rejected his petition on the advice of the Union Government without considering the merits of the decision of the Supreme Court confirming the death sentence. The court opined that the President in the exercise of his power under Article 72, must scrutinize the evidence on record and come to a different conclusion both on the guilt of Kehar Singh and the sentence imposed on him. The president does not amend, modify, or supersedes the judicial record. The judicial record remains intact. The court need not spell out specific guidelines for the exercise of power under Article 72 this is so because the power under Art.72 is of the widest amplitude. The order of the President cannot be subjected to judicial review on its merits. Accordingly, it was held that the President must consider the matter afresh with the law laid down in the present case.   

In a landmark case of Epuru Sudhakar & Anr. v. Government of Andhra Pradesh (2006) the Supreme Court held that the clemency power of the President and Governor under Article 72 and Article 161 is subject to judicial review. 

The Supreme Court laid down certain grounds on which can be claimed by the petitioner for  judicial review of the clemency power: 

  1. If the order is passed without any application of mind.

  2. If the order passed is malafide.

  3. If the order passed on completely irrelevant considerations.

  4. If the order suffers from arbitrariness.

The Apex Court states that the cases where the delay in mercy petition was unexplained of 6 to 12 years, then in those cases the death sentences must be commuted by life imprisonment. There are many factors on which the order of clemency can be challenged like mental illness, age of the accused, lack of legal aid, etc. The Court further observed that these powers rest upon the highest authorities i.e. the President or the Governor of the State, as the case may be and there is no word limitations mentioned in the Articles and they may grant remission as an act of grace and humanity in appropriate cases. 

The clemency power and judicial review




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