DISSERTATION REPORT

ON

“PARDONING POWER OF THE PRESENT AND THE GOVERNOR

WITH REFERENCE TO RECENT DEVELOPMENT”

SUBMITTED FOR PARTIAL FULFILLMENT OF THE REQUIREMENT

OF THE DEGREE OF B.B.A., LL.B.(H)

Submitted by: Submitted to:

Prakriti Singh Ms. Axita Saxena

A8121514007 Amity Law School

B.A., LL.B.(H) Amity University, Lucknow

Batch 2014-2019

AMITY LAW SCHOOL

LUCKNOW
DECLARATION Title of project “PARDONING POWER OF THE
PRESENT AND THE GOVERNOR WITH REFERENCE TO RECENT
DEVELOPMENT”

I understand what Plagiarism is and am aware of the university’s policy in this

regard I declare that

The work submitted by me in partial fulfillment of the requirement for the award
of degree B.A.LL.B (Hons.) Assessment in this Dissertation is my own: it has not
previously been presented for another assessment.

(a) I declare that this dissertation is my Original work Wherever work from
other source has been used, all debts (for words, data, arguments and
ideas ) have been appropriately acknowledged and referenced in accordance
with the requirements of NTCC regulations and guidelines
(b) I have not used work previously produced by another student or any other
person to submit it as my own.
(c) I have not permitted, and will not permit, anybody to copy my work with the
purpose of passing it off as his or her own work.
(d) The work conforms to the guidelines for layout, content and style as set out
in the Regulations and Guidelines.

Date:

Prakriti Singh

A8121514007

B.A., LL.B.(H)
 CERTIFICATE

This is to certify that Prakriti Singh Student of B.A.,LL.B (H) Amity University
Uttar Pradesh has Worked Under my supervision and guidance for the work
entailed “PARDONING POWER OF THE PRESENT AND THE
GOVERNOR WITH REFERENCE TO RECENT DEVELOPMENT” this
dissertation work is submitted in fulfillment of B.A.,LL.B (H) Degree. This work
is comprehensively complete and sufficient to standards of Academic Requirement

Dated Research Supervisor

Ms. Axita Saxena

Amity law School

AUUP, LKO.
 ACKNOWLEDGEMENT

I have taken efforts in this project However it would not have been possible
without the kind support and help of many individuals. I would like to extend my
sincere thank to all of them.

I am highly indebted to my supervisor Ms. Axita Saxena for his guidance and
constant supervision as well as for providing

necessary information regarding the project & also for his support in completing
the project.

I would like to express my gratitude toward my parents for their kind co-operation
and encouragement which help me in completion of this project.

My thanks and appreciations also go to my colleague in developing the project and

people who have willingly helped me you with their abilities.”

Prakriti Singh

A8121514007

B.A., LL.B.(H)
List of cases
 Table of Content

CHAPTER- I

PARDONING POWER OF THE PRESIDENT UNDER THE CONSTITUTION OF

INDIA

3.1. Introduction

The Power to Pardon: Text and Structure

Power of President to Grant Pardons

Power of the Governor to Grant Pardons

A Comparative Analysis of the Scope of Article 72 and 161

3.3. Need and Significance of Pardoning Power in India

3.4. Article 72 - Textual and Structural Analysis

3.4.1. Basic Terminology

3.4.2 Extent of Exercise of the Pardoning Power

Trail by Tribunal

Amnesty and pardon

Principles of Natural Justice

Self-Pardon

Aliens and the Pardoning Power

Article 72 and other Statutory Provisions

Effect of Pardon

3.5. The Nature and Scope of Power of Pardon in India

3.6. Power to Pardon and the Council of Ministers

3.7. Power to Pardon and the Theory of Separation of Powers

3.7.1 The Power to Pardon and the Legislature

3.7.2 The Power to Pardon and the Judiciary

Varahagiri VenkataGiri (1969–1974)

Dr.Zakir Hussain (1967–1969)

Dr. S. Radhakrishnan (1962–1967)

First President Dr.Rajendra Prasad (1950-1962)

Dr.Fakruddin Ali Ahmed (1974-77) and NeelamSanjiva Reddy (1977-82)

R. Venkataraman(1987–1992)

Dr. Shankar Dayal Sharma(1992–1997)

K R Narayanan (1997–2002)

Dr.APJ Abdul Kalam (2002–2007)

Smt Pratibha Devisingh Patil(2007-2012)

Pranab Mukherjee (2012-Till date)

CHAPTER

LITERATURE REVIEW

Chugh Ashish "IS THE SUPREME COURT DISPROPORTIONATELY APPLYING THE

PROPORTIONALITY PRINCIPLE?" :

H.M. Seervai, in his “Constitutional Law of India”:

In Sankari Prasad Singh Deo v. Union of India, (1952 ), Sajjan Singh v. State of Rajasthan,

(1965), I.C. Golaknath v. State of Punjab, (1967):

Tripathi, Dr. S.C. "Environmental Law":

In case of Vishaka v. state of Rajasthan:

Ruma Pal, (Rtd. SC, J.) In his “Judicial Oversight or Overrich”:

Entry 2A of List I and Entry 2 of List II, Seventh Schedule:

Parmanand Singh, In his “Protection of Human Rights”:

Bengal v. The Committee for Protection of Democratic Rights:

In Rupa Ashok Hurra v. Ashok Hurra and Another:

Oberoi Namit in "THE RIGHTTO PRIVACY: TRACING THE JUDICIAL APPROACH

FOLLOWING THE KHARAK SINGH CASE" :

In ADM Jabalpur v. Shiva kant Shukla case:

Rajeev Dhavan In his “Law As Struggle: Public Interest Law in India”:

In People’s Union for Civil Liberties v Union of India:

In I.R. Coelho v. State of Tamil Nadu Case:

Khan Nuzhat Parveen, in “Arti National Security, Terrorism And Administration of

Justice”:

Buzinger Martin in“POSITIVE ACTION DECLARED UNCONSTITUTIONAL":

Dicey, In his “Law of the Constitution”:

Dr. Tilok Nath Arora, Speaks of “Judicial Strictures”:

Basu, D.D., in his “Introduction to the Constitution of India”:

Anupchand, in his “The Indian Political System”:

Benjamin N. Cardozo, Speaks of “The Nature of Judicial Process”:

In Rameshwar Prasad v. Union of India case:

Jha, Chkradhar, in their “Judicial Review of Administrative Acts”:

Ashok H. Desai and S. Muralidhar, in “Public Interest Litigation”:

CONCLUSION:

SUGGESTIONS:

BIBLIOGRAPHY
 CHAPTER- I

PARDONING POWER OF THE PRESIDENT UNDER THE CONSTITUTION OF

INDIA

3.1. Introduction

The Constitution of India, a key document, heralding constitutional practice and offers edicts to

the instrumentalities vis-à-vis organs of the State to ensure good governance of the country

which includes primarily Legislature, Executive and Judiciary. The business of the State is

manned, jointly and severally, by these organs respecting the principle of separation of power.

Undoubtedly, the judiciary is endowed with the power to award sentence to punish the

wrongdoer, but it is, not absolute power, subject to further review.

The executive head, i.e. the President or the Governor, as the case may be, is endowed with a

power to review the decision of the Judiciary with an intent to grant a second chance, a chance to

be able to live life again, a chance to repent and a chance to right the wrong done. This power of

pardon bestowed on the Head of the State, to free the wrongdoer from punishment is not a matter

of grace or mercy, but is a constitutional duty1 of great significance and the same has to be

exercised on a given occasion in accordance with the discretion contemplated thereon.

1Kehar Singh v. Union of India, AIR 1989 SC 653.

The Power to Pardon: Text and Structure

The Constitutional power to grant of pardon, remissions, suspension of sentence, etc.conferred

on the President or the Governor, as the case may be, are detailed as under -

Power of President to Grant Pardons

Article 72 of the Constitution of India enjoins that „Power of President to grant pardons, etc. and

to suspend, remit or commute sentences in certain cases–

1. The President shall have the power to grant pardons, reprieves, respites or remissions of

punishment or to suspend, remit or commute the sentence of any person convicted of any offence

a. In all cases where the punishment or sentence is by a Court Martial;

b. In all cases where the punishment or sentence is for an offence against any law relating to a

matter to which the executive power of the Union extends;

c. In all cases where the sentence is a sentence of death

2. Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer

of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court

martial.

3. Nothing in sub-clause (c) of clause (1) shall affect the power to suspend remit or commute a

sentence of death exercisable by the Governor of a State under any law for the time being in

force.
Power of the Governor to Grant Pardons

In corollary, to the power of the President of India to grant pardon, the Governor of a State

empowered to grant pardon to right the wrong. However, the scope of the power given to the

Governor is relatively narrower to the President. A comparative look between Article 161 & 72

of Constitution of India would unravel it.

Article 161 Power of Governor to grant pardons, etc., and to suspend, remit or commute

sentences in certain cases –

The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions

of punishment or to suspend, remit or commute the sentence of any person convicted of any

offence against any law relating to a matter to which the executive power of the State extends.

The power of clemency is not limited to the President and Governor, even the Executives is

accorded with the power to right the wrong under the Indian Penal Code, 1860 (in short I.P.C.)

and Code of Criminal Procedure, 1973 (in short Cr.P.C.). Further, Article 72(2) authorizes the

military hierarchy to exercise similar powers to to suspend, remit or commute a sentence passed

by a Court Martial.

A Comparative Analysis of the Scope of Article 72 and 161

A cursory look at Article 72 and 161of the Constitution of India would reveals that the nature of

power of pardon bestowed to the President is far superior to the Governor.

The President or the Governor, as the case may be, may exercise their power in this behalf,

subject to the laws made under Union List and the State List respectively. The ambit of their

power is widely demonstrated therein. Thus, the power conferred on the executive authority is
co-extensive with legislative authority2. In other words, the President shall act in consonance

with the, but confining to the offences covered under, laws enacted by Parliament as per the

Union list and whereas the Governor of a State shall act in tune with laws enacted by State

legislatures under the State list. They do have concurrent

Power of clemency in respect of matters in Concurrent list, but subject to the limitation on

executive power contained in Articles 73(1)(a)3 and 1624 respectively.

On conjoint reading of Articles 72 and 161 reflects two distinctive factors in relation to the

power of the President and the Governor, they are - firstly, the President can pardon punishments

or sentences inflicted by Court Martial,5whereas, the Governors have no such power. Secondly,

Article 72(1) (c) expressly provides that the President‟s power extend to pardoning sentences in

all cases where the sentence is one of death. However, the proviso contained

2Seervai, H.M.,„Constitutional Law of India: A Critical Commentary’, Vol.2, (4th Ed.),

Universal Law Publishing Co.(2004) p. 2101.
3 The Extent of executive power of the Union: (1) Subject to the provisions of this Constitution,
the executive power of the Union shall extend: (a) to the matters with respect to which
Parliament has power to make laws.
4 The extent of executive powers of the State and it extends to all matters in which State
legislature can make laws. However, it cannot encroach upon matters in the Union list or any
other matters entrusted with the Union by way of Central Law. The State executive can thus, not
encroach upon matters legislated by the Union but even this does not imply that there is a rigid
division between the three agencies of the State as is the case with the Union executive. Since
there are times when even the executive is entrusted with legislative or judicial functions. 5Sub-
clause (a) of clause (1) of Article 72.
in Article 72(3)6, ravels a question - whether the Governor of a State does have a power to

pardon a sentence of death? The answer is divergent, some authorities is of the view that in a

case of death sentence, the Governor has no power of pardon but he can only remit, suspend or

commute the sentence of death and others speaks that he has no power to pardon the death

sentence. Although Article 161 is silent on this score both the President and the Governor of a

State, correspondingly, are competent to exercise the power to pardon, under Articles 72 and

161, for an offence relating to a matter to which executive power of the State extends.

The Constitution of India doesn‟t envisage any hierarchy of powers between the President and

the Governor, the rejection of one mercy petition does not exhaust the power of the President or

the Governor7 and that there is nothing to debar the President and the Governor from

reconsidering mercy petition in view of the changing circumstances.

Generally, convicts take a serial approach. Firstly, they prefer petition to the Governor, if they

succeed the matter ends. On failure, they approach the President. The Constitution doesn‟t

prescribe number of times the convict may approach the Governor or the President seeking

mercy. The conventional understanding is that a de-novo attempt would be considered on the

change of circumstances or conditions i.e. on the rise of „new matters‟. New revelations, even

hearsay ones, delay etc. have been treated as new issues which makes a fresh mercy petition

worthy. An absurd script was recently demonstrated in

6 Nothing in sub-clause (c) of clause (1) shall affect the power to suspend remit or commute a
sentence of death exercisable by the Governor of a State under any law for the time being in
force.
7G.Krishta Goud and J.Bhoomaiahv. State of Andra Pradesh (1976)1 SCC 157.
India. Yakub Memon was convicted and sentenced to death for the serial blasts that rocked

Mumbai in early 1993. As the day of execution neared, a flood of petitions was filed with the

President and the Governor. Soon after the Governor rejected it, a new one was filed with the

President. The Governor‟s rejection was deemed to be a “near circumstance” for approaching the

President. Soon after the President rejected it, Memon‟s lawyers approached the Supreme Court

arguing that his petition was wrongly rejected. The Court dismissed the matter. This was again

urged as a new ground and a new mercy petition was filed before the Governor. The circle was

repeated. On 28 July 2015, judges of the Supreme Court woke up to hear a final challenge

against the rejection of this latest mercy petition by the President at 2.30 AM. Couple of hours

later that morning, he was finally executed. An exasperated Court asked: should there be limits

to the number of times a person may petition the Governor or the President, and seek a review of

those executive decisions? The Constitution doesn‟t lay down any limits. Perhaps the challenge

lies in the provision itself. What is achieved by allowing the same convict to approach,

repeatedly, both the Governor and the President on the same matter is not clear. An exclusive

reading of Article 72 would take away the Governor jurisdiction to deal with death penalty cases.

One cause of delay will be removed instantly. Presidents would have the sole authority to review

these petitions. But that still leaves open the question of numbers: how many times it is

acceptable to approach the President on the same matter? This circus of mercy will continue

unabatedly until conventions are established or some guidelines are judicially pronounced. It is

high time to put an end to repeated mercy petitions, by death row convicts to ensure finality to

the case, on the rejection by the President or the Governor and dismissal of appeal by the Court.

Any continuance of this practice would render the whole procedure a mockery and leads to abuse

of the provisions.
3.3. Need and Significance of Pardoning Power in India

The societies around the world felt the need of injecting flexibility into the administration of

criminal justice by offering a broad cushioning to the power of executive clemency. Indeed, for

an ideal society, where all laws are just and perfect in their operation, the institution of clemency

may be unnecessary. But it may not be good to an imperfect world since the criminal law of

prevailing therein may only deal with general patterns of anti-social behaviour without

considering every conceivable situation which may occur in the diverse circumstances of the life.

Further, the application of the criminal law by the Courts not necessarily wise or correct in any

given case. As a corrective and curative measure the power to pardon seems to be indispensable

to prevent the gullible from becoming a prey to the vindictiveness of accusers, inaccuracy of

testimony, and the fallibility of jurors and Courts. 8 Resultantly, institutional machinery of the

State permits the executive for reconsideration of a penal sentence pronounced in the judicial

process.

The Constitution of India is designed, reflecting afore cited ideologies, to bestow the power to

grant pardon, reprieves and respites on the President and the Governor of States, vide Articles 72

and 161 respectively, in addition to the commutation of sentences under Cr.P.C. and I.P.C.

8David B. Hill, „The Pardoning Power‟ The North American Review, vol.154, No.422,

Jan(1892) available at URL: http://www.jstor.org/stable/i25102302.

Despite, a basic question nags quite often - do we need a provision on the power of pardon in our

criminal justice system?9 As in Indian legal system, the sentence of death is not mandatory and

the Court is free to consider the circumstances relevant to the question of sentence. The answer

would be no to the prerogative of mercy, still one shall not forget that the law is made for man.

Justice is much more than mere codes and precedents. There are occasions when justice and

humanity demanded that mercy be shownin the matter of sentence. The Presidential power acts

as a safety valve in exceptional cases where the legal system fails to deliver a morally or

politically unacceptable result and to secure public welfare. Further, the power of pardon is

virtually the only tool to reconsider and, in appropriate cases, reduce a sentence, once final.

Moreover, it is strongly felt that, it aids to vindicate cutting of king-size Indian prison population.

Accordingly, the concept of Pardon remains expedient and valuable today as –

 It is founded on consideration of public good and is to be exercised sparingly on the

ground of public welfare, which is the legitimate purpose of all punishments, by a

suspension as by an execution of the sentences;

9 The Law Commission of India, in its 35th Report on Capital Punishment (1967), Vol.1,

pp.317-18 para, 1025 examined the question at great length and not recommended any change in

the scope of these powers.

 It may substantially help in saving an innocent person from being punished owing to

miscarriage of justice or in cases of doubtful conviction;

 The hope of being pardoned itself serves as an incentive for the convict to behave himself

in the prison institution and thus, helps considerably in solving the issue of prison

discipline;

 It is always preferable to grant liberty to a guilty offender rather than sentencing an

innocent person.

3.4. Article 72 - Textual and Structural Analysis

 Before proceeding to a detailed textual and structural analysis of the Article 72 of the

Constitution of India, it would look appropriate to undertake a brief definitional survey.

Because, it is imperative to note that the terms „Clemency’ and „Mercy’ are not used in

the Constitution, the Indian Penal Code and Criminal Procedure Code which instead refer

to Pardons, Reprieves, Respites and Remissions, Suspension, and Commutation.

 Each word figured in Article 72(1), i.e. pardons, reprieves, respites or remissions of

punishment or to suspend, remit or commute the sentence, empowers the President to

grant certain kind of relief to the convict of a crime. These powers are on broad canvass

of pardoning powers, which may be classified into two-category viz. (1) full pardoning

power i.e. „Pardon‟ and (2) partial pardoning power -it may be in the form of respite,

reprieve, remission, suspension and commutation of sentence. Distinctive features of

these terminologies are illustrated as under –

3.4.1. Basic Terminology

Pardon: pardon is an executive act of grace, relieving the individual upon whom it is bestowed

from the punishment; the law prescribes for the crime of which he has been convicted.10

A pardon may be full or partial. A full pardon freely absolves the party from all legal

consequences, direct and collateral, of his conviction. It releases the offender from the entire

punishment prescribed for the offense and from all the disabilities consequent upon his

conviction. It fully avoids or terminates punishment for a crime.11A partial pardon, however,

remits only a portion of the punishment or absolves from only portions of the legal consequences

attendant upon the crime and conviction.

A pardon may be unconditional or conditional. An unconditional pardon frees the convicted

party from criminal liabilities without any conditions whatsoever. A conditional pardon, on the

other hand, is operative only upon the performance of certain stipulated conditions which have

been annexed. Any condition precedent or subsequent may be imposed that is not illegal,

immoral, or impossible of performance.

Reprieve: Reprieve means a stay of the execution of a sentence or of the enforcement of a

penalty, for a temporary period. It implies the taking back or suspending a prisoner from the

execution and proceedings of law for the time; temporary postponement of the execution of a

criminal sentence, especially death sentence. The term “reprieve” is derived from “reprendre”, to

keep back

10United States v. Wilson, 32 U.S. 150 (1833).

11Durga Das Basu, ‘Commentary on the Constitution of India’, vol.4 (8thed.), Lexis Nexis
Butterworth‟s, New Delhi,(2008) at p. 4457.
and signifies the withdrawing of the sentence for an interval of time, and operates in delay of

execution.12

In England the Crown may exercise the prerogative right of granting a reprieve which is

effected by announcing its pleasure in any way to the court and may remit penalties in certain

cases. In England, reprieve is granted till the birth of the baby where a female prisoner under the

sentence of death is pregnant (also in the U.S.) and where the prisoner becomes insane after the

judgment. In India, Section 416, Cr.P.C. authorizes the High Court to stay the execution of a

death sentences in the former case. Under the Constitution, the President and Governors do

possess a power of reprieve to be exercised in fit cases.

Respite: Respite means awarding a lesser punishment on some special ground, for example,

pregnancy of a woman offender. In State (NCT of Delhi) v. Prem Raj 13, Supreme Court laid

down that the term respite implies awarding a lesser sentence instead of the penalty prescribed in

view of the fact that the accused has had no previous conviction or the like. It was held that it is

something like a release on probation for good conduct under the Section 360 of the Code of

Criminal Procedure. In England, it is not available in the case of conviction of murder. But

where a woman offender in pregnant, the sentence to be passed on her is one of penal servitude

instead of death. This power is exercised by the court. Under our Constitution, the Executive is

also vested with this power.

12 Joseph Chitty, ‘A Practical Treatise On Criminal Law’, vol.3, ( 2nd Ed.), Springfield Mass:
G. and C.
Merriam (1836), p.757
13(2003)7 SCC 121; MANU/SC/0548/2003.
Suspension: while remission reduces the quantum of a sentence, suspension merely stays

execution thereof. Apart from the present Article, Section 432 of the Cr.P.C, 1973 empowers the

appropriate government to suspend execution of the sentence after consulting the court by which

sentence had been imposed or confirmed. On the other hand, Section 389 of the Code empowers

the appellate court to suspend execution of the sentence pending the appeal before it. Though

provisions in Article 72 and 161 is not apparently controlled by anything in Section 389 of the

Cr.P.C., our Supreme court has held that executive power has to be harmonised with the power

of the Appellate Court, so that the power of Appellate Court, during the pendency of the appeal,

cannot be curtailed by the executive ordering suspension, during appeal. This means that during

the pendency of appeal, the power to suspend execution belongs exclusively to the appellate

court notwithstanding the provisions in section 432 of the Code or Article 72/161 of the

Constitution.

Commutation: A commutation substitutes a lesser for a more severe sentence. The most

common form of a commutation is a life sentence granted in place of a death

sentence.Commutation means the exchange of one form of punishment for another. For example,

rigorous imprisonment is commuted to simple imprisonment. And the expression „commute‟

means to change a penalty to one less severe especially out of clemency. By earning a remission

of a life convict does not acquire a right to release, but release would follow only upon a

clemency order made under the Criminal Procedure Code by appropriate Government or a

clemency order in exercise of power under Article 72 and 161. If the government has framed any

rule or scheme for early release of such a convict, then those rules or scheme have to be treated

as guidelines for exercising power under Article 161 of the constitution.14

14State of Haryana v. Balwan, AIR 1999 SC 3333.

Where clemency petition is rejected by the governor without seeking advice of the council of

ministers, such an order is not valid. Exercise of power under article 161 is discretionary power,

yet to certain standards.15

Remission: Remission means reduction of the amount of sentence without changing its

character. An order of remission does not, in any way, interfere with the order of the Court. It

merely affects the execution of the sentence passed by the Court and frees the convict from his

liability to undergo the full term of imprisonment inflicted by the Court, though the order of

conviction and sentence passed by the Court still stands as it was. A remission of sentence,

therefore, does not mean acquittal.16

3.4.2 Extent of Exercise of the Pardoning Power

A general reading of Articles 72 and 161 would give an impression that the power of pardon can

be exercised by the President only for persons convicted of an offence and not to under trials. For

the exact understanding of etymology of Article 72, it is very important to look at three words

used. These are ‘Punishment’, ‘Sentence’ and ‘Offence’. The first two words show that the

pardon by the President will save a person from the consequences of an offence and from a

punishment as well. In this Article the third word „offence‟ is also material. The manner in

which it is has been used in sub-clause (b) of clause

(1) of Article 72 makes it quite clear that the above said punishment or sentence must be in

respect of the offence committed. This implies that the punishment, which is supposed to be

pardoned, has to be in respect of an offence and not for any simple breach of a condition.17

15EupurSudhakarv. Govt. of Andra Pradesh, AIR 2006 SC 3385.

16Hukum Singh v. State of Punjab, AIR 1975 P & H 902.
17Balkrishana,„Presidential Power of Pardon‟,13 Journal of Indian Law Institute,1971 p.104
This is so because the word „offence‟18is defined in the General Clauses Act, 1897.19 There is

nothing in Article 72 to show that the meaning of the term „offence‟ not intended in that Article.

Thus, it is believed that the power of pardon that has been granted can be used only in following

cases:

1. In respect of an act which, in the eyes of law, is an offence

2. Which offence is in respect of a matter over which the executive power of the Union extends

and;

3. For which punishment has already been adjudged.

A person is deemed to be innocent unless it is proved in the eyes of the law. Thus if a person has

not been given a chance of a fair trial or a proper investigation has not been carried out against

that person, then there is no reason why that person should be given a pardon, because he is still

innocent. From this, it is clear that a person can be sentenced or punished only when he has been

convicted by the court. Therefore, it is important to note that the pardoning power can be

exercised only in the case of a convicted person only. Usually, this should be the case in every

Country, in which the rule of law prevails in the sense in which it does in England. The President

or a Head of State is granted the power of pardon with the view that there should be provision in

the law to save a person from the consequences of a punishment adjudged by inadvertence or

mistake against that person by judiciary which being a human institution is likely to err. It is for

that reason that provision is made in every Constitution, whether monarchical or democratic, for

the power of granting pardon. This position has been aptly stated in the following words

18 The definition of the term Offence has been given in the Act is, „An act or omission made
punishable by law for the time being in force‟.
19 The Act applies to the interpretation of the Constitution by virtue of Article 367.Clause 1-
Unless the context otherwise requires, the General Clauses Act, 1897 , shall, subject to any
adaptations and modifications that may be made therein under Article 372,
“The object of pardoning power is to correct possible judicial errors for no system of judicial

administration can be free from imperfections. It is an attribute of sovereignty, wherever the

sovereignty may be to release a convict from a sentence which is mistaken, harsh or

disproportionate to the crim”20

This being the case, the question of the President granting pardon to a person who has not been

convicted of an offence should not arise. If a person, who affirms that he is innocent, is

nevertheless granted pardon by the executive head he can well retort that since I have not

committed any offence, so the question of the President granting me pardon cannot and does not

arise at all. However, Indian Courts in some of the cases said that a Court could grant the pardon

even before conviction or trial. This principle was laid down in several occasion without giving

due attention to the language of the provision. In Re MaddelaYerraChannagadu and Others 21 the

Court held that, “The pardon power includes not only that of granting absolute and unconditional

pardons, but also that of commuting a punishment to one of a different sort than that originally

imposed upon a person. It may be exercised at any time after the commission of an offence,

either before legal proceedings are begun or during their pendency, and either before or after

conviction.” Since in the United States, the Courts had held that the power could be exercised at

any time after commission of the offence, the Court found no reason to take a different stand and

held that the Governor could indeed exercise the power of pardon under Article 161 before a

person is convicted and sentenced.

20Biddle v.Perovich,274 U.S.480(1926); Exparte Grossman, 267 U.S.87(1924); Nanavativ.

State of Bombay, AIR 1961 SC 112; See D.D.Basu, ‘The Commentary on the Constitution of
India’, vol.4 (5thed), Lexis Nexis, Butter Worth Wadhwa and Co., (2008) p 4446.
21 AIR 1954 SC 375; 1954 CriLJ 1370.
Again the Supreme Court in the case of K.M. Nanavati v. State of Bombay22 held that the

framers of our Constitution intended to confer on the President and the Governors within their

respective spheres, the same power of pardon, reprieve and clemency, both in its nature and

effect, as was possessed by the Sovereign in Great Britain and by the President in the United

States.A Constitution Bench, by a majority of four to one decided that the power to suspend the

sentence lies with the Court under Article 14223 and though the Governor had the power to grant

a full pardon24 at any stage of the proceeding including during pendency of the appeal, he could

not grant a suspension of the sentence when the matter was sub-judice before the Supreme Court.

Therefore, with respect to the stages at which the various forms of pardoning power can be

exercised under the Constitution, the Courts have reached the following conclusions:

a) Pardon can be granted at any stage after commission of the offence, that is, before or after

conviction.

b) Pardon can be granted during pendency of an appeal to a higher Court.

c) A sentence cannot be suspended during pendency of appeal to the Supreme Court.

It is succumbed that the Courts, in reaching the above conclusion have neglected the core

principles of interpretation of a constitutional text. The King could exercise, no doubt that in

England, the Royal Prerogative to pardon offences at any time. As stated in Halsbury‟s Laws of

England, “Pardon may, in general, be granted either before or after conviction”. Further, in the

United States, too, the power of pardon has been held to be available to the President at any

stage, either before or after conviction of the offender. However, these conclusions need to be

put in their proper perspective before they can be applied in India, a job; the Indian judiciary has

failed to perform. The power of pardon of the British Crown was in the nature of a prerogative

that is „something out of the course of the ordinary common law‟. This is clearly not the case
with our Constitution. In India, the power of pardon is vested with the President as an integral

part of the constitutional scheme.25The President of India has no prerogatives; he has only

powers granted and functions enjoined by the Constitution of India. There being vital distinctions

between the two, it is not permissible to proceed on the presumption that the powers of the

President of India are those, which are enjoyed by the British Crown at the present day. 26The

inferences reached by the American Courts can be understood better by referring to the provision

in the Constitution of the United States which enunciates the power of pardon of the American

President, “The President he shall have the power to grant reprieves and pardons for offences

against the United States except in cases of impeachment.” In United States v. Wilson,27the

primary case relied upon by the bench in Channugadu case, the U.S. Supreme Court held that the

power of pardon vested in the President in the United States was the same as the power enjoyed

by the King in the United Kingdom, and therefore, could be exercised at any time after

commission of the offence. It is difficult to see how this case could be relied upon by the Indian

Courts. The language of the provision in the American Constitution is substantially different

from ours, since it talks about pardoning „offences against the United States‟, and not the

„punishment‟ and „sentence‟ for persons convicted of an offence, as is the case in India.

The Indian Courts hurriedly adopted the stand taken by the U.S. Supreme Court without

appreciating the fact, that the Constitutions of several States in the United States do not empower

the Governor to exercise the power of pardon at the stage of trial that is before conviction.28

25Supra note 1.
26 Supra note 17 at 103.
2732 U.S. 150 (1833).
28 Constitution of Ohio, Article 3 Sec.11; Constitution of California, Article 5 Sec. 8(a).
There was, therefore, no reason for the Courts to assume that the power of pardon of the

President in India would be the same as that of the President in the United States simply from

what was held in the authorities interpreting a provision, the language of which is, in fact

substantially different from that used in Articles 72 and 161 of the Indian Constitution.

The right perspective to the problems regarding the stage of exercise of the various forms

of the pardoning power is that the power of pardon in India extends only to „punishments‟ and

„sentences‟, and therefore, can be exercised only when such penalty has already been imposed,

that is, after the person has been tried and found guilty.

Trail by Tribunal

It is pertinent to note that, if the trial of a person is held not by Courts but by a Tribunal.

Can we say that the act for which the trial has taken place in the Tribunal is also an „offence‟ for

Article.72? For instance, the general situation will be that of non-compliance of the terms of a

certain contract and therefore, termination of the same. The answer would be no, as in such a

case the term, „breach of conditions‟ is used and not the word offence. To be more precise, the

word ‘offenc’ can be used only in the case when the act done falls within the scope of the word

‘offence’29 as it is defined in the Indian Penal Code or corresponding laws and for which

prosecution is carried on in accordance with the law.

29 Section 40 of the IPC defines Offence as an act punishable by the Code. An Offence takes
place in two ways, either by commission of an act or by omission of an act.
 In addition to this, it is important to note that the person should be inquired under Code of

Criminal Procedure, because if it were done under an Act, which does not characterize the act as

an offence, then the word punishment would not hold the same meaning as it is meant to be in

Article 72. This issue has been discussed and observed in Maqbool Hussain v. State of Bombay 30

that the protection of Art.20(2) be invoked by a citizen, there must have been a prosecution and

punishment in respect of the same offence before a Court of law or a Tribunal, required by law to

decide the matters in controversy judicially on evidence on oath which it must be authorized by

law to administer and not before a tribunal which entertains a departmental or administrative

enquiry.The very wording of the Article 20 would indicate that the proceedings therein

contemplated are of nature of criminal proceedings before a Court of law or a judicial tribunal, in

accordance with the procedure prescribed in the statute, which creates the offence and regulates

the procedure. The same issue was discussed in S.A. Venkataraman v. Union of India,31 the Court

in this case held that: Before Article 20(2)32 could be invoked, it is essential that the earlier

prosecution must have been under the Act which created that offence. After looking at these two

cases, it is evident that before the question of the exercise of the power of the President to grant

pardons can arise the person to whom pardon is granted must have been awarded punishment or

sentenced by a competent court of law or judicial tribunal.

30AIR 1953 SC 325.

31AIR 1954 SC 375.
32 Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.
Amnesty and pardon

The term amnesty and pardon are not synonymous. They are being used inversely.

Taking the situation of revolts, in such cases the head of the State makes a proclamation that the

rebels who surrender would be granted pardon and all their offences will be omitted. Does the

President have the power to act upon under Art.72? If we look at the situation more closely then

we can see that irrespective of the words used by the President in the proclamation actually does

nothing more than giving a promise to the rebels. Therefore, even if the word pardon has been

used in the proclamation, in actual the action of the head of the state does not amount to pardon

from a punishment. The reason being, at the time of the issue of declaration no person would

have been awarded any punishment. Pardon is granted to a specified individual while the

promise not to take action on the rebels surrendering arms is addressed to an unspecified body of

rebels. Such an action therefore may not be termed grant of pardon in the sense in which the

expression is used in Article 72. Thus, the President does not have the power of granting amnesty

to rebels. This power is vested only with the Parliament.

It may be argued in this connection that the language employed in article 72 does not

necessarily denote that the power of pardon granted to the President is qualified by sub-clause

(b) of clause (1) of that Article. The expression „The President shall have power to grant pardons

reprieves, respites or remissions of punishment‟ is complete in itself and has been bodily taken

from section 295(2) of the Government of India Act, 1935. This expression has been employed

in that Act in connection with the Crown of England, and it is not followed in that Act by such a

qualifying clause or sub-clause as is the sub-clauses of Article 72.

It may be therefore, urged that sub-clauses shall be deemed to qualify the expression

“„suspend‟ „remit‟, or „commute‟ the sentences of any person convicted of an offence”. If this
reading is adopted then the power of pardon granted to the President is found to be unlimited as

it should be in the case in the case of the head of a sovereign State. It is submitted that this

paragraphing of article 72 would not be correct because had it been so, then the expression

„punishment‟ would not have been used in sub-clauses (a) and (b) of clause (1) of the Article.

Beside there would have no occasion to make provision contained in clause(c) of clause (1) of

that article, for the simple reason that when the President had an unlimited power granting

pardon, then he could have used that power in all circumstances in the case of a death sentence,

irrespective of power whether or not that sentence of death had been pronounced in respect of an

offence under a law relating to a subject to which the executive power of the Union extended.

The truth is that the Crown of England had under the Government of India Act, 1935 overriding

suzerainty over all the authorities whether central of local, established by law in India, and in the

eyes of law they were all subject to his control. Indeed, it is clear from Section 2 of that Act that

the sovereign power over India continued to remain vested in the crown of England. He had thus

overriding control not only over the governor general but also on the Governor. He could

disallow any Act of the provincial legislature. Therefore, the English Crown had the power of

granting pardon of punishment awarded for offences whether under the federal or the provincial

laws. However, that power could not be conferred in full measure on the President of India for

simple reason that the sovereign power over India was not vested in the President but in a sense

the entire constitutional polity. So, in accordance with the requirements of a federal polity, a

distribution of power was unavoidable and the expression „power to grant pardon‟ in Article 72

was qualified by sub-clauses (a), (b) and (c) and the word „punishment‟ was inserted in sub-

clause (a) and(b).

 It may be that expression „the President shall have the power to grant pardons, reprieves,

respites or remissions of punishment‟ may be read as (i) the President shall have the power to

grant pardons, reprieves, respites and (ii) the President shall have the power to gnat remissions of

punishment‟. In this case, the difficulty pointed out above would not arise because the

qualifications contained in clauses (a) and (b) would then apply to remissions and not to pardons.

However, such a paraphrasing of this provision would not only be contrary to the rules of

grammar but also would make the power of the President to grant pardon, comprehend all kinds

of liabilities, be they civil or criminal. The king of England has the power of granting pardon

even in respect of civil matters. If the term „Pardon‟ were not read in conjunction with the term

punishment, then a power would have been conferred on the president of India in respect of civil

obligations which was never possessed by the Crown in India.

Another extraordinary result that would follow would be to invest the Governor with

unlimited power of pardon under Article 161. In that Article the same expression, namely,

„power to grant pardons, reprieves, respites or remission of punishment occurs. Can it be said

that the governor of a state has unlimited power to grant pardons in respect of any matter albeit

that matter may not be within the jurisdiction of the State of which he is the Governor? Were this

is to be the case, there would be anarchy in the field of law because in that case a Governor of

Karnataka may grant pardon to a parson who may have been convicted by the High Court of

Maharashtra for an offence under a law of the Maharashtra State.

Principles of Natural Justice

A decisive issue is whether the principles of natural justice 33 apply to executive

clemency. On the affirmative consideration of this question it reflects thus, though the power to

grant pardon is an executive power, it is quasi-judicial in nature. A quasi-judicial body would

impose a duty to act fairly. The Supreme Court has held that the constitutional safeguard

enshrined in Article 2134 extends to the executive disposal of mercy petitions. 35 The Court further

declared that „any procedure which permits impairment of the constitutional right without giving

reasonable opportunity to show cause cannot but be condemned as unfair and unjust, and hence it

is a clear infringement of the requirement of Article 2136.

Hence, as a part of the constitutional scheme, Article 72 is subject to the discipline of Article 21.

Therefore, the accused should have a least right to fair hearing.

On the other hand, there have been cases in which the Court has said against the application of

natural justice. The Supreme Court in Harbans Singh v. State of Punjab37

held that the power of the Government is executive in nature and the principles of natural justice

cannot be grafted thereon by means of judicial innovations and activism. Thus, the power to

pardon is purely executive discretion and there is no obligation on the part of the President or

Governor to hear the parties concerned before rejecting or granting a mercy petition.

33 The principles of natural justice include (1) The Absence of Bias. (2) Audi Alterem Partem
(3) Reasoned Decision. See C.K.Thakker, Administrative Law, 168-198(1992).
34 Article 21 of the Constitution of India provides that: No person shall be deprived of his life or
personal liberty except according to procedure established by law.
35T.V.Vatheeswaran v. State of Tamil Nadu, (1983)2 SCC 68.
36Maneka Gandhi v. Union of India, AIR 1978 SC 597. 37AIR 1984 SC 1594.
37AIR 1984 SC 1594.
Since the principles of natural justice have been applied at each stage of the sentencing

procedure, it may legitimately be done away with at the executive stage. However, it is discreetly

submitted that after the combined code theory enunciated in Maneka Gandhi case, there is no

room for such an opinion. Since executive clemency is subject to Article 21, it is indisputable

then that the accused must have a minimal right to personal hearing. This constitutional

imperative cannot be undermined by a judicial order.

Self-Pardon

This is another issue that needs to be looked at whether the Executive has the power to grant self-

pardons. The problem with the act of self-pardon is that it is likely to undermine the public‟s

confidence in President/Governor and the Constitution. In the absence of any well-defined

guidelines for the exercise of the pardoning power, the possibility of the President/Governor

granting pardon to himself/herself cannot be precluded. Undoubtedly, such a situation would be

rare, and it is argued that any individual worthy of holding a position as important as the position

of a President should be vested with the power to pardon. Although it is expected that the

position of the President and those of Governors of States, being such privileged positions,

would be occupied by individuals who do not possess a criminal record, there are two important

facts that require to be noted: first, the Constitution of India does not prescribe a bar on convicted

or under-trial individuals contesting the position of President/Governor; and second, neither

Article 72 nor Article 161 prescribe a bar on the power of pardon being exercised in relation to

the person exercising the power. Although not expected in the ordinary course, the possibility of

such a situation arising cannot be excluded completely, and in such instances, it would be

necessary for the propriety of the decision of the President/Governor to be reviewed. Like other

issues, this one also has the other side of the argument where one can argue that self-pardon can
be exercised. As held by the Supreme Court in a number of judgments, the President has to act

on the advice of the council of ministers while granting pardon. Now, since the council of

ministers can be tried and put on trial for a criminal offence the question, which arises, is

whether they can pardon themselves. It is also against the principles of natural justice, that a

person should judge himself. “No man is allowed to be a judge in his own cause, because his

interest would certainly bias his judgment, and not improbably, corrupt his integrity.” The case

indicates that not only is this a venerable principle of philosophy and history, it is an essential

part of the structure of our constitutional government.

Aliens and the Pardoning Power

The MHA, Govt.of India has been laid down in Paragraph VIII, the “Procedure regarding

petitions for mercy in death sentence cases.” that the Petitions for mercy submitted on behalf of a

convict under sentence of death shall be dealt with mutatis mutandis in the manner provided by

these instructions for dealing with a petition from the convict himself. The petitioner on behalf of

a condemned convict shall be informed of the orders passed in the case. 38 If the petition is signed

by more than one person, it shall be sufficient to inform the first signatory. The convict himself

shall also be informed of the submission of any petition on his behalf and of the orders passed

thereon.” From a perusal of the abovementioned paragraph, it can be seen that there is no bar to

aliens making petition for mercy to the President of India on behalf of any of the convicts.

Looking at the very nature of the power to grant pardon or clemency, applications or petitions for

mercy by foreigners will have to be considered on the same footing as those submitted by Indian

citizens. In the light of the above, it can be inferred that there is nothing to bar a foreigner from

applying for mercy.

Article 72 and other Statutory Provisions

The Constitutional position of executive power to pardon under Article 72 was considered by the

Supreme Court in the case of Maru Ram 39 and held that the powers under Article 72 and Article

161 and Sections 43240 and 433A41 of CrPC may be similar, but they are not identical and not

violative of the provisions of Article 72/161 because the source and substance of the two powers

are different.This legal position was re-affirmed by this Hon‟ble Court in the case of Kehar

Singh42 and Ramdeo Chauhan v. State of Assam, 43held that Article 72 and Article 161 cannot be

fettered by any statutory provision such as sections 432-433 and 433-A of the Criminal

Procedure Code and the said power cannot be altered, modified or interfered with in any manner

whatsoever by any statutory provisions or prison rules. A similar question came up before the

Court in the case of Madhav Shankar Sonawane v. State of Maharashtra, 44 here the issue was that

whether Section 307 of the Indian Penal Code, read with Section 34 of the Indian Penal Code,

which has a sentence of minimum of 25 years after conviction, places a limitation on the exercise

of power under Article 72. The Bombay High Court in the above case held that it is not allowed

to the Courts to hold that a convict shall have to undergo a minimum period of sentence even

with an exercise of constitutional jurisdiction by high constitutional functionaries under Article

72 and 161. And The Supreme Court has held that the power of the President to commute any

sentence is not subject to any constitutional or judicial restraints except that it cannot be used to

enhance the sentence.45

39AIR 1980 SC 2147.

40 Section 432 lays down Power to suspend or remit sentences.
41Section 433A lays down restrictions on provisions of remission or commutation in certain
cases mentioned therein.
42 Supra note 1.
43(2001)5 SCC 714.
Effect of Pardon
 What is the effect of the exercise of the power of pardon by the President/ Governor on

the judicial record of the sentence of the convicted person? Is this effect the same in cases where

the sentence is merely remitted, or commuted? This question is of far reaching consequence,

particularly in Election disputes, where questions of disqualification from contesting elections on

the grounds of earlier convictions have arisen time and again before the Courts.

In Sarat Chandra Rabha v. KhagendraNath, 46 this question came up somewhat in issue

before the Supreme Court. The Court, in order to answer the question raised before it regarding

the effect of remission of the sentence examined several authorities on the subject and came to

the conclusion that a remission of a sentence did not in any way interfere with the order of the

court; it affected only the execution of the sentence passed by the court and freed the convicted

person from his liability to undergo the full term of imprisonment inflicted by the court, though

the order of conviction and sentence passed by the court still stood as it was. A distinction was

drawn between reduction of a sentence done by an appellate or revisional Court and an order of

remission by an executive authority. The latter was held to be an executive power which could

not interfere with or alter the judicial sentence, and the appellant was therefore held to be rightly

disqualified under Section 7(b) of the Representation of the People Act, 1951.

46AIR 1961 SC 334; See V.N.Shukla, „Constitution of India (Revised by Mahendrap.Singh)

(10th Ed) Lucknow: Eastern Book Company, (2004) p. 337.

A more interesting question would have come up if instead of a remission, a full pardon had been

granted by the Governor. Would the person, in this case, still have been disqualified under

Section 7(b) of the Representation of the People Act, 1951? The question regarding the effect of

a full pardon, therefore, is yet to be answered by the Supreme Court of India, but considering the

problems which have already cropped up in the United States and the confusion created in their

Lower Courts due to the two conflicting decisions, it becomes necessary to analyse and put the

effect of a full, unconditional Presidential pardon in India in its proper perspective. The effect of

a pardon depends upon the nature of the power enjoyed by the functionary entitled to the same,

though the offender has been judicially convicted and held guilty. A remission would pardon

only a part of the punishment, whereas a full pardon would wipe out the entire punishment

imposed. The disqualification under Section 7(b) of the Representation of the People Act, 1951

would therefore, continue to apply to such a person, since he would be a person „convicted of an

offence‟ within the meaning of the provision. A presidential pardon, therefore, cannot blot out

the guilt of the person; its effect is restricted to only non-execution of the punishment, and no

more, since otherwise it would go against the principle of separation of powers by allowing the

executive to virtually overrule the decision of the Court.

The legal effect of a pardon is wholly different from a judicial suppression of the original

sentence. This ostensible incongruity is explained by Sutherland J. in United States v. Benz 47 in

these words, “The judicial power and the executive power over sentences are readily

distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an

executive function. To cut short a sentence by an act of clemency is an exercise of executive

power which abridges the enforcement of the judgment, but does not alter it qua a judgment”.48
3.5. The Nature and Scope of Power of Pardon in India

Article 72 and 161 designedly and benignantly vest in the highest executive the humane and vast

jurisdiction to remit, reprieve, respite, commute and pardon criminals on whom judicial

sentences may have been imposed. However, the power vested in the President under Article 72

and the Governor under Article 161 of the Constitution is a Constitutional duty. As a result, it is

neither a matter of grace nor a matter of privilege but is an important constitutional responsibility

reposed by the people in the highest authority, and there are no words of limitation indicated in

either of the two Articles. The President or the Governor, as the case may be, in exercise of

power under Article 72 and 161 respectively, may examine the evidence afresh and this exercise

of power is clearly independent of the judiciary. Supreme Court, in many instances, clarified that

the executive is not sitting as a Court of appeal rather the power of President/Governor to grant

remission of sentence is an act of grace and humanity in appropriate cases, i.e., distinct, absolute

and unfettered in its nature.

This is an important power which is based on a wide form of discretion. Discretion neither can

nor should be eliminated in the course of exercising pardoning power. The essence of discretion

is choice. An authority in which discretionary power is vested has range of option at his disposal

and he exercises a measure of personal judgement in making the choice. Yet, discretion is not

arbitrary judgement, but rather the ability to recognize correctly. 49 Ausual reading of these

provisions shows that there is complete silence regarding the factors which must be taken into

account by the President and the Governor while exercising the power to pardon. It is reasonable

to assume that this silence was deliberate, since the power to pardon has historically been in the

nature of a prerogative.

49 P.J Dhan, „Justiciability of the President‟s Pardon Power‟, vol.26 (3 & 4) Indian Bar Review,
(1999), p.74
Though a textual interpretation of the Constitution fails to convince that the framers of the

Constitution intended for the advice of the Council of Ministers to be binding on the President

and Governors while exercising their pardoning powers, the judicial interpretation of the

Constitution suggests an entirely different proposition. The Supreme Court in Samsher Singh v.

State of Punjab50 a seven-judge bench stated that the satisfaction of the President or the Governor

required by the Constitution is not their personal satisfaction, but the satisfaction of the Council

of Ministers on whose aid and advice the President and the Governor exercise their powers and

functions. The Hon‟ble Supreme Court in the case of Maru Ram 51ruled that the President and the

Governors in discharging the functions under Article 72 and Article 161 respectively must act

not on their own judgment but in accordance with the aid and advice of the ministers. This legal

position was re-affirmed by this Hon‟ble Court in the case of Kehar Singh.52

With regard to the guidelines for the exercise of pardoning power under Article 72, the

judiciary has been reluctant to impose guidelines on the executive for exercising the power to

pardon in most cases, with a few exceptions. In Kuljit Singh case 53 the Supreme Court expressed

the view that the pardoning power of the President is a wholesome power that should be

exercised „as the justice of a case may require‟, and that it would be undesirable to limit it by

way of judicially- evolved constraints. In Kehar Singh,54 the Supreme Court stated that the power

under Article 72 should be construed in the widest possible manner without the Court interfering

to lay down guidelines of any sort. However, the Court went on to state that the power to pardon

may be exercised to correct judicial errors, and for „reasons of state‟.

50(1974)2 SCC 831.

51 Supra note 39.
52 Supra note 1.
53Supra note 45
54 Supra note 52.
In India, it may be noted that the vesting of this power in the President and Governors, as

opposed to the Prime Minister or Legislatures, may have been deliberate, so as to prevent the

grant of pardon being made open to any sort of legislative debate.

3.6. Power to Pardon and the Council of Ministers

The power vested in the President under Article 72 and the Governor under Article 161

of the Constitution is a Constitutional duty. It is essentially an executive power and not an

extension of judicial power,55 which needs to be exercised in the aid of justice and not in

defiance of it.

Articles 74 as well as 163 provide for the Executive to act on the aid and advice of the

Council of Ministers, headed by the Prime Minister or the Chief Minister as the case may be.

While the meaning, nature and scope of „aid‟ have received absolutely no attention from any

commentator so far, the term „advice‟ has been interpreted to be the recommendation of the

Council of Ministers. Despite, the two constitutional amendments made to revise the content of

Article 74, these phrases have not received the effective and meaningful discussion among the

Academics as well as the Judiciary. These two provisions presume that the advice tendered by

the Council of Ministers would be always constitutional. What happens if an unconstitutional

advice has been offered by the Council Ministers is not clear?56

55In Kehar Singh Case Court held that „The President “acts in a wholly different plane from that
in which the Court acted. He acts under a constitutional power, the nature of which is entirely
different from the judicial power and cannot be regarded as an extension of it”.
56Mukharji. P.B, „The Critical Problems of the Indian Constitution’, Bombay: Bombay
University, (1969), p.25
Making the President bound by such unconstitutional advise renders the entire constitutional

structure meaningless, and particularly in the light of the oath undertaken by the President and

the Governors to „preserve, protect and defend the Constitution and the law‟ under Articles 60

and 159 respectively. According to Justice P.B. Mukharji, if the President were to accept the

ministerial aid and advice regardless of his own independent view, then he jeopardizes the

diverse communities placed under the protection of the Constitution. There is every need to look

into this aspect in a detailed manner and make necessary amendments to preserve the

constitutional governance in a more meaningful manner rather than making a few cosmetic

changes here and there.

Article 74(1) of the Constitution states that the Council of Ministers headed by the Prime

Minister would aid and advise the President, “who shall, in the exercise of his functions, act in

accordance with such advice”. Similarly, Article 163(1) of the Constitution states that the

Council of Ministers headed by the Chief Minister would aid and advise the Governor in the

exercise of his functions. However, Article 163(1) differs from Article 74(1) in one important

respect, since the latter qualify the former half of the provision, which states: “except in so far as

he is by or under the Constitution required to exercise his functions or any of them in his

discretion”. Further, Article 163(2) provides that if a question arises as to whether a certain

matter requires the Governor to act in his discretion, the decision of the Governor in his

discretion would be final and the validity of such decision cannot be called in to question on the

ground that he should not have acted in his discretion on the matter. The prevalent view appears

to be that the Governor is expected to play a more activist role than the President does,

particularly since in the era of coalitiongovernments, Governors must act as the link between

Centre and the States, and for maintaining effective constitutional machinery within the States.
However, there is a need to distinguish between „functions‟ that may be performed using a

certain degree of discretion, for maintaining effective constitutional machinery within States, and

a „power‟ in the nature of the power to pardon, which is intended to give a much broader degree

of discretion to the President and the Governors. Articles 72 and 161 expressly use the term

„power‟ and maintain a constant silence regarding the guidelines on the basis of which such

power is to be exercised. The use of terms such as „Mercy‟, „Clemency‟ and „Grace‟ in relation

to this power indicate that it is intended to

be in the nature of prerogative, entirely based on the subjective satisfaction of the President and

Governors. An inference that the President and the Governor would not be bound by the advice

of the Council of Ministers while exercising the power to pardon does not seem unjustified, on a

bare reading of the text of the Constitution.

Although a textual interpretation of the Constitution fails to convince that the framers of the

Constitution intended for the advice of the Council of Ministers to be binding on the President

and Governors while exercising their pardoning powers, the judicial interpretation of the

Constitution suggests an entirely different proposition. In Samsher Singh, Supreme Court held

that the satisfaction of the President or the Governor required by the Constitution is not their

personal satisfaction, but the satisfaction of the Council of Ministers on whose aid and advice the

President and the Governor exercise their powers and functions. The judgment in Samsher Singh

applied in the case of Maru Ram where the Supreme Court held that it is not up to the President

or the Governor to take independent decisions while deciding whether to pardon an individual,

since they are bound by the advice of the Council of Ministers.

However, the President disregards the recommendation of the ministerial advice to reject a

mercy petition of a convict, always has the option to sit over it and delay taking a decision until
his or her retirement. This is called „Pocket veto‟ as the Constitution does not expressly mention

it. But, the use of this option has sometimes landed the President in legal tangle, with the death

row convicts choosing to challenge the rejection of their mercy petitions, or their non-disposal

after an undue delay, as having imposed cruel and Undue punishment and seek commutation of

their death sentences on various grounds.

As per the established practice, in Britain, the power to grant pardon is exercised by the

reigning Monarch in consultation with the Secretary of State for the Home Department. The

Supreme Court, in Maru Ram, laid emphasis on the British practice while arriving at its

conclusions regarding the Indian position. Justice Krishna Iyer stated: „It is fundamental to the

Westminster system that the Cabinet rules and the Queen reigns.‟ The British practice appears to

have been incorporated in India as well, where a Section Officer in the Ministry of Home Affairs

prepares a note, “which moves up the hierarchy with varying degrees of indifference or interest”.

An interpretation of the Constitution to the effect that the President and Governors are bound to

act as per the advice of the Council of Ministers while exercising their pardoning powers may

lead to situations of absurdity. For example, in the case of Kehar Singh,the accused in relation to

whom pardon was sought was the assassin of Ms. Indira Gandhi, a former Prime Minister of

India. In such a situation, the possibility of the advice of the Council of Ministers, which

comprised Ministers from the same political party as the former Prime Minister, suffering from

bias or a lack of objectivity cannot be precluded. Further, in the era of coalition governments,

there is a chance that the advice given to the Council of Ministers would not reflect a „true, just,

reasonable and impartial opinion‟, and would instead be based wholly on political

motivations.61In light of such possibilities, it is submitted that some leeway for the President to

exercise the power to pardon without being bound by the advice of the Council of Ministers, and
without bowing to political pressures, is necessary. Hence, Researcher view that the decisions of

the Supreme Court in this regard have been far from prudent.

A study of the prevailing situation indicates that there is a need to find a reasonable solution such

that the exercise of the pardoning power is based on equitable, logically sound reasons, and that

the advice of the Council of Ministers is given effect to, wherever appropriate. It has been

recommended that there should be a constitutional amendment, which expressly bestows the

power to pardon in the President, such that he is under no obligation to act on the aid and advice

of the Council of Ministers.62Researcher bargain that such a view is lacking on two counts: first,

such an amendment to the Constitution would be virtually impossible to pass, since the reigning

party in the Parliament or State Legislature would be absolutely unwilling to divest themselves

of the power of aiding and advising the President or the Governor, respectively; and second,

regardless of the possibility of absurdity in certain cases, the ruling party is the representative of

the will of the people, and its advice must be given effect to as far as possible, to uphold the

public confidence.

It is submitted that the solution to the foreseeable problem described above may be found by way

of the President or Governor exercising his/her discretion in a self-determined manner. That is,

the President/Governor should be allowed to use his/her discretion to distinguish between

situations where the advice of the Council of Ministers is extremely important in light of the

context of the case and the need to give effect to certain policy decisions of the ruling party (for

example, a strong stand against terrorism), and those situations where giving effect to the advice

tendered by the Council of Ministers would be most obviously problematic and raise doubts as to

the correctness of the decision to grant or deny pardon.

3.7. Power to Pardon and the Theory of Separation of Powers

The Constitution of India endorses two most valuable doctrines, namely rule of law and

Separation of power. The former emphasises the power of the law above all while the latter is

based on the concept of the division of State and federal government into three independent and

separate branches-Executive, Legislature and Judiciary.

The power to pardon, vested in the President and the Governors of State, is an executive

power. This is an important power, and as demonstrated above, it is based on a wide form of

discretion. It requires to be examined how this prerogative of the executive can be reconciled

with the functioning of the other branches of the state, namely the legislature and the judiciary,

and whether there are any areas of conflict.

3.7.1 The Power to Pardon and the Legislature

It is observed that there are two ways in which the Parliament and State Legislatures in

India can interfere with the President or the Governor exercising their pardoning power, firstly,

under Article 61 of the Constitution, the President may be impeached by the Parliament; and

secondly, by carrying out the function of legislating, which may have a direct or incidental

impact on the carrying out of the discretionary power of granting pardons.

As regards the first aspect,for some, the impeachment of the President acts as a sufficient

check against the misuse of the pardoning power. It is succumbed that in the Indian context,

impeachment cannot be said to exist as a sufficient check against the pardoning power being

exercised in an arbitrary manner. There are some reasons firstly, the Constitution of India only

provides for the impeachment of the President and does not contain any provisions for dealing

with the impeachment of Governors of States. Hence, the process of impeachment is of limited
value in relation to the power to pardon, which may be exercised by the President and also by the

Governors of States. Secondly, the process of impeachment, as provided for under Article 61, is

carried out by the Members of Parliament. In the event that the Council of Ministers have

advised the President to render the unsatisfactory decision of granting or declining pardon, it

would be unlikely that the ruling party or coalition would be in favour of undertaking the

measure of impeachment against the President, since the President‟s decision would, in such an

instance, be a reflection of the decision of the Council of Ministers. Indeed, if in the situation

envisaged here, the Council of Ministers were to actively attempt to impeach the President, it

would be an utterly irresponsible act. Thirdly, in the event that there is a general dissatisfaction

with the manner in which the President has exercised his power under Article 72, one of the

reasons for which could be that the advice tendered by the Council of Ministers was rejected by

the President, the Members of Parliament can commence proceedings for impeaching the

President. However, due to the inherent nature of the requirements of Article 61, it may be

extremely difficult for the impeachment process to be successful. Since the President occupies

such an important position, stringent conditions have been imposed for his/her removal. As per

Article 61(2), the first step in the process of impeachment is the submission of a resolution to

impeach the President that must be signed by at least one-fourth of the total number of members

of the House seeking to impeach the President. It is to be noted that the resolution must be signed

by one-fourth of the total number of members of the House, as opposed to the number of

members present and voting in the House, which is the term used in relation to passing Bills in a

joint sitting of both Houses of Parliament. Similarly, after the charge(s) against the President

have been examined, and after the President has had an opportunity to appear before such

investigation, it is required that a resolution is passed by at least two-thirds of the total

membership of the House for the impeachment to be successful. Hence, the impeachment of the

President is not likely to be successful in the ordinary course, unless there is a substantial degree

of agreement between the members of the House of Parliament initiating impeaching

proceedings that the President should be impeached.

In respect of second way of interference, namely interference with the pardoning power

by enacting legislations, it was held in the United States decision of Ex parte Grossman that the

“Executive can reprieve or pardon all offences after their commission, either before trial, during

trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without

modification or regulation by Congress”. This indicates that the Legislature is not at liberty to

modify the decision of the President in relation to a pardon. In our Indian context, it may be

noted that the vesting of this power in the President and the Governors, as opposed to the Prime

Minister or Legislatures, may have been deliberate, so as to prevent the grant of pardon being

made open to any sort of legislative debate.

The decision of the Constitution Bench in Maru Ram while discussing Section 433A of the Code

of Criminal Procedure, 1973, which pertains to restrictions on the power of remission or

commutation in certain cases, stated that it could not be said to be violative of Articles 72 and

161 of the Constitution, since the source and substance of the two powers were different, and

although Section 433A of CrPC did not act as a fetter on the powers laid down in these Articles,

it would be desirable if the spirit of Section 433A CrPC was not overlooked while exercising the

power to pardon.

It was held in Ashok Kumar v. Union of India that the Rules enacted under the Prisons Act and

other similar legislations by State Governments should be treated as guidelines by the President

and Governors while exercising their power to remit sentences, before the executive can
formulate guidelines for itself in relation to the exercise of this power. It is submitted that this

decision is incorrect in that it departs from the view expressed by the Constitution Bench of the

Supreme Court in Kehar Singh that since the power to pardon is of the widest amplitude, it is not

open to the Court to suggest guidelines. However, it remains to be seen whether the enactment of

a legislation reflecting a significant policy decision, as opposed to a mere procedural change,

would have an impact on the exercise of the power to pardon. For example, in the event of an

amendment to put in place the death sentence as a punishment for a class of crimes, such as

crimes pertaining to terrorism, it is possible that some degree of deference may be shown to such

an amendment by the President/Governor while exercising the pardoning power, particularly

when the advice of the Council of Ministers may echo the same policy.

3.7.2 The Power to Pardon and the Judiciary

In the context of the power to pardon, the possibility of conflict between the executive and the

judiciary is more apparent than that of the conflict between the executive and legislature. This

stems from the fact that the power of the President/Governor to grant or deny pardon may

overlap, to some degree, with the power of the judiciary while pronouncing its sentences.

However, this friction has been sought to be minimized by those who argue that the power of the

executive and the judiciary exist in entirely different realms.

The decision in Kehar Singh was extremely significant for expressly pronouncing that

while exercising the pardoning power, the President/Governor would have liberty to enter into

the merits of the decision passed by the court: “it is open to the President in the exercise of the

power vested in him by Article 72 of the Constitution to scrutinise the evidence on the record of

the criminal case and come to a different conclusion from that recorded by the Court in regard to

the guilt of, and sentence imposed on the accused”. It is not difficult to see why such a ruling
tests the concept of separation of powers, by allowing the executive to perform the same function

as the judiciary. As per one view, vesting investigative and adjudicative powers in the President

threatens the rule of law, particularly since the limits of exercising these functions are

determined by the President himself/herself.

The Supreme Court held that “The President does not amend or modify or supersede the judicial

record. The judicial record remains intact, and undisturbed. The President acts on a wholly

different plane from that on which the Court acted. He acts under a constitutional power, the

nature of which is entirely different from the judicial power and cannot be regarded as an

extension of it. And this is so notwithstanding that the practical effect of the Presidential act is to

remove the stigma of guilt from the accused or to remit the sentence imposed on him.” A

analogous proposition was made in Sarat Chandra Rabha v. Khagendranath Nath, where the

Supreme Court distinguished between the practical effect and the legal effect of an order of

remission by the President/ Governor:“An order of remission thus does not in any way interfere

with the order of the court; it affects only the execution of the sentence passed by the court and

frees the convicted person from his liability to undergo the full term of imprisonment inflicted by

the court, though the order of conviction and sentence passed by the court still stands as it was…

in law, the order of remission merely means that the rest of the sentence need not be undergone,

leaving the order of conviction by the court and the sentence passed by it untouched.”

H.M.Seervai, stated his opinion that the Supreme Court‟s decision in Sarat Chandra Rabha

deprived the decision of the Court in K. M. Nanavati, a case decided by the Court earlier in the

same year, of its binding value.68 In the case of Nanavati, the Supreme Court had stated that the

judicial power of the Supreme Court under Article 142 of the Constitution, whereby it can make

orders „for doing complete justice‟ and the executive power contained in Article 161 could be
exercised in the same field within certain narrow limits. The Court had suggested a harmonious

interpretation of the two provisions of the Constitution. Seervai cautions against the

misapplication of the principle of harmonious construction, such that disharmony is created

between two constitutional provisions where such disharmony does not exist in the first place.

Another argument advanced to distinguish between the powers of Courts and the Executive

power to grant pardon is that while the former is concerned with the legal rights of an individual,

the latter is concerned with compassionate grounds for relieving the individual of the punishment

imposed on him/her. In the words of Lord Diplock: “Mercy is not the subject of legal rights. It

begins where legal rights end”. While making decisions, the judiciary considers the legal

grounds for imposing punishments and is not at liberty to make pronouncements on the basis of

compassion. It is said that through its exercise of the power to pardon, the executive performs the

function of neutralising the insufficiently compassionate judgments of the judiciary. This

principle has been recognized in India in Mohinder Singh v. State of Punjab.

It is submitted that the power of the judiciary to make decisions regarding the guilt of an accused

and the appropriate sentence in each case may be said to be more limited than the power to

decide the acceptance or rejection of a mercy petition for two reasons. Firstly, it may not be

possible for the judiciary to take into account certain factors that can be considered only after the

sentence of the convict has begun, such as the post-conviction behaviour and contributions made

by the convict. The Supreme Court in Satpal & Anr. v. State of Haryana has recognised that this

is an important consideration and should be given due importance by the President/Governor

while making a decision on whether pardon should be granted. Secondly, the decision to grant

pardon may be based on certain reasons that may not be appropriate for the court to consider

while sentencing an individual. It has come to be accepted that decisions granting or declining
pardon contain a certain policy element. Courts may not be the most appropriate forum for

giving effect to such policy decisions, since they are concerned only with ascertaining the guilt

or innocence of the accused. Further, it is pointed out that courts may be logistically handicapped

to decide cases on the basis of policy considerations: „policy decisions often require access to

empirical information and the benefit of the views of a wide range of people, neither of which

may be available through the judicial processes.

It may be noted that the executive and judiciary has accorded due regard to the principle of

harmony between the branches of government. That is, both branches have been willing to

recognise the limits of their realms of functioning and behave in a manner deferential to the other

branch of government, or assist the other branch of government in carrying out its functions. In

certain instances, the Supreme Court in Mohinder Singh case has declined to adjudicate on a

petition brought before it on the ground that the same matter has been seized by the President

under his pardoning power. The principle of comity has also been extended to cases where, for

example, two out of the three individuals who were accomplices in the same crime have been

granted commutation, whereas the third has been unsuccessful in this regard the Supreme Court

may recommend to the President that in the interests of equity, the punishment of the third

accomplice be commuted as well.

In deduction, it may be said, if the power to pardon is exercised in an indiscriminate manner,

then it may undermine the precedential value of judicial decisions and upset the equilibrium that

should ideally exist between executive and judicial action. Unless the President and Governors

exercise a certain degree of self-restraint while making decisions under the pardon to power, the

use of this power could potentially destabilise the authoritativeness of decisions made by the

judiciary, and have a negative impact on the deterrent effect sought through such judgments. It is
important that the President and Governors provide cogent and convincing reasons while

exercising their pardoning power.

3.8. Article 72- The Role of President

The Constitution of India, in pursuit of criminal justice, has endowed the power to pardon the

convict on the establishment of his/ her innocence to the crime. Of course, it is in the nature of

reviewing power on the judgment of the Supreme Court of India. The President of India, herein

under Article 72, may grant pardon, suspend, remit, or commute sentences awarded by the Court

considering the recommendation made by the Ministry of Home Affairs. The power conferred on

the President is very narrow in scope since it is not absolute power. The power endowed is

limited. Here,he has either to consider the recommendation or reject the same. In the event the

Home Ministry again places the recommendation for on the file, he has no other go but to accord

his assent. The dichotomy envisages that the discretion to exercise the power to pardon although

supreme power, tacitly, lies with the Council of Ministers but not with the President. Thus,

power of pardon contemplated in the Constitution is not absolute power but clipped with

limitation. The scheme visualized herein is of reverse socio-legal engineering by making the

President to act on the advice of the executive. Thus, the aggrieved can avail remedial justice at

the behest of the executive by just getting a formal approval of the President.

Does the power of pardon is an independent and omnipotent power of the President and

Governor? At the outset it appears to be. But in fact it is spelled as glorified ciphers or rubber

stamps. A discernible march is reflected from the decision of March 2004, the Supreme Court.

Wherein the Supreme Court has directed the Governor of West Bengal to re-consider the mercy

petition of a condemned prisoner, as he mechanically exercised his power, by according his

assent, to the rejection issued by the Home Department of West Bengal without his mind
independently.The Supreme Court opined that the Governor did not have the opportunity to

exercise his power in a fair and just manner as the Government did not place all material facts

before him including mitigating circumstances. Before arriving to either decision the President or

the Governor, as the case may be, shall form an opinion independently and judiciously. Does this

attitude of the Government would facilitate him to derive the desired opinion on merits? The

Court felt that, albeit, the power endowed is very nominal the Government shall place all the

relevant material before him. Thus, the judgment of the Supreme Court illustrates how a façade

is maintained by the Government to, neutralize the independency of the President or Governor,

as the case may be, see that the power is exercised by him in a particular way. Rather it is an

attempt to instil a political space for the President and Governor to exercise their moral authority.

Indubitably, a subtlety could be notice between the power of the Government and the President

vis-a-vis Governor. Either cannot act on mercy petition in the absence of the other. A reciprocal

approach under a common understanding, to meet the ends of justice, is warranted. The germane

question is not - who is having upper hand but how independently and fairly it is exercised? The

Constitution mandates that the Government is bound to place all the material evidentiary

documents, which are material to arrive at decision, to the consideration of the Executive Head

to facilitate him to act impartially and judiciously.

An attempt is made to unravel the manner in which the President of yester years have examined

and viewed the mercy petitions within the limited sphere of their powers.

First President Dr.Rajendra Prasad (1950-1962)

The impasse between the first President Rajendra Prasad and Prime Minister Nehru, over the

extent of the President‟s discretionary powers, was ended in favour of the cabinet and executive.
The bottleneck was ended largely on merits of their arguments as they have, it is said, influenced

the eventual result.

The Personal eminence of the President, it appears, has played pivotal in influencing the

decisions of the executive on mercy petitions without overstepping his powers. The personal

stand of Dr.Rajendra Prasad on capital punishment, although, is unclear, his notings on petitions

suggest that he was not a spoken supporter, tended not to disagree when the Government

recommended commutation. On accepting the commutation Prasad adds in his own handwriting,

„I do not ordinarily express my opinion contrary to that of the Home Ministry, particularly when

the recommendation is for commutation of death sentence, as imprisonment for life which is

given in substitution is a serious enough sentence.‟ He used to express unequivocally his legal

stance in cases where the Government recommended rejection. However, he had concerns on

blameworthiness and role of the petitioner, recommending reconsideration of such petitions.

No doubt the President Dr. Rajendra Prasad is free from criticism. It is castigated that an attempt

is made, singularly, to increase the powers of the President. However, a study of his noting‟s in

mercy petitions suggests that he was aware of the extent of his powers- both with respect to the

Government and the Courts. He cautiously averted the effort of conversion of clemency process

another tier of appeal. One of his notings runs thus - „But coming to the conclusion that

commutation is called for we need not go into the merits of the case, especially if the Courts

have considered the point and come to a conclusion in evidence. We are not sitting in appeal and

our jurisdiction comes only on the basis of the findings of the Courts, otherwise clear acquittal

and not mere reduction of sentence will be the result.‟ He never imposed his views on the

Government. The case of Bharwad Mepa Dana demonstrates it. Wherein, the Government was

intending to commute the sentence of one brother to avoid total extinction of the family but not
both the brothers of the family. Prasad felt that there was no difference between the cases of the

two brothers. Thus, he writes -„I would leave it entirely to the Home Minister without indicating

any preference of my own after what he has written and shall accept his recommendation.‟

The President Dr. Rajendra Prasad, during his 12 long years of stay in the office, has played a

predominant role in setting an incredible precedent on mercy petition. He apparently defined the

limits and extent of pardoning power. This has aided in easing out the confrontation between the

Ministry and of his office and made the task of his successors graceful.

Dr. S. Radhakrishnan (1962–1967)

Dr.S. Radhakrishnan had treaded the path of his predecessor. He mooted deliberation on

abolition of capital punishment with Prime Minister Nehru without furthering his clemency

powers as a personal agenda. He seldom made finer details in his notings on petitions yet he was,

actively continued the tradition of Dr.Rajendra Prasad,not hesitant to ask the Government to

reconsider its stand on rejection of petition where he believed the decision ought to be changed.

Dr.Zakir Hussain (1967–1969)

President Dr.Zakir Hussain, in his provisional stay in the office it appears, has treaded the

trodden path. He used to relay, quite often, on his Secretary in making the notings. He provided a

platform to air grievances to the citizens, family members of petitioners.

Varahagiri VenkataGiri (1969–1974)

On the eve of Mahatma Gandhi birth centenary, subject to the amnesty decision of the

Government, a large number of petitions for commutation were disposed by V.V Giri.

Thereafter, there was a drastic decline in filing of mercy petitions, with the introduction of

amendment to the Code of Criminal Procedure, 1973, for having modified the punishment in

case of murder from death sentence to life imprisonment and death sentence as an exceptional
punishment. Even the rate of disposal of petition has come down drastically. Between1965-

1974number of petitions attended was of 1034 whereas, between 1975-1984only 173 petitions

were disposed of. Further, in the late 1970s and the early 1980s, the death penalty was in great

controversy. The Supreme Court of India in Bachan Singhcase put the controversy in rest by

ordaining that the death penalty shall be awarded only in the „rarest of rare‟ case. In

consequences whereof, the rate of awarding of death sentences came down and so also the

decline in mercy petitions.

Dr.Fakruddin Ali Ahmed (1974-77) and NeelamSanjiva Reddy (1977-82)

No records are available, presently in the archive, to speak on the contributions of

Dr.Fakruddin Ali Ahmed and Neelam Sanjiva Reddy.

GianiZail Singh (1982-87)

By the year 1982 large number of mercy petitions was on the file of the President. It is said

GianiZail Singh has attended only two cases out of 23. No record underlines the kind of role

played by GianiZail Singh in decision-making. At the time of his departure, from the office,

mercy petitions were piled up again.

R. Venkataraman(1987–1992)

President R.Venkataraman had an occasion to attend 39 petitions out of which he commuted the

sentence, on grounds of delay, only in four cases. President R. Venkataraman, it appears, was in

favour of capital punishment. His intervention became imminent as the Government had little

choice but to commute the sentence on the ground of delay and not on humanitarian stance.He

did not hesitate to return the petition to the Government for reconsideration where the

Government itself had suggested commutation of the capital sentence.

Dr. Shankar Dayal Sharma(1992–1997)

President Dr.Shankar Dayal Sharma was perfunctory in attending mercy petition. He resolved 14

petitions by just signing the rejection order sent to him. In the words of AG Noorani, Advocate-

writer, „the Indian Presidency really came into its own when Shankar Dayal Sharma became

President‟, a study of the petitions available shows little indication of application of mind by the

President.

K R Narayanan (1997–2002)

President K R Narayanan made his stint with a resolute grit. He concern towards capital

punishment was invincible. The first mercy petition forwarded, on 11 November, 1997, to him

was of Piara Singh and others with a recommendation to reject it. He sent it back for

reconsideration. The next petition came to him, in March 1998, with an advice to commute, he

acted upon accordingly. Thereafter, the National Democratic Alliance (In short NDA)

Government has placed about nine petitions before him with an advice to reject. Among those

nine petitions he kept eight under pending consideration and rejected the petition of

Govindasami from Tamil Nadu. However, his decision was stayed by the Government. The

decision to reject echoes that, albeit he was against to death penalty, he had not made any blanket

decision to commute all sentences or keep petitions pending thereby forcing his own views on

the government. This has been duly endorsed by his secretary Gopal Krishna Gandhi who later

became the Governor of West Bengal.

President K R Narayanan had discrete approach towards the power of pardon.When a

recommendation is for rejecting the appeal for commutation, he tried to explore the farthest

limits of the „rareness‟ in the case on hand. He is committed to dredge the evidence

painstakingly to discover the possibilities of extenuation, be it the age factor (of the convict) or
be it circumstantial or pertaining to the establishing of mensrea, notwithstanding that biases are

at work in our society including inherited psychologies that work in our criminal investigation

processes. But he did not mechanically or in a „slide-on‟ manner relegate his views on capital

punishment to cases that came to him for decision. Had his own personal views on the death

penalty revered, he would have certainly been glad to see a hiatus on executions in the country,

yet as is clear this is not something that appears to have been planned or schemed by him.

One may get astonished why the then NDA government chose to stay the execution of

Govindasami. Is it for the satiation of political agenda, or yielding to the appeals from influential

quarters? It is said, the Dravida Munnetra Kazhagam (In short DMK)government in Tamil Nadu

(a constituent of the NDA Government) has played pivotal role in convincing the NDA to stay

the execution in addition to the move of People‟s Union for Civil Liberties (PUCL), Tamil

Nadu. However, the Government did not send this petition for second time to the office of the

President till he laid down his office.

Dr.APJ Abdul Kalam (2002–2007)

President Dr.APJ Abdul Kalamon assuming the office has inherited the eight mercy petitions

which are pending on the file of his predecessor. The Government has forwarded four more

mercy petitions except the petition concerning to Rajiv Gandhi assassination case, between

April-May 2004, to his office for consideration. Does it signify partisan politics influencing

clemency decision-making?

The downpour of mercy petitions, with an advice to reject, did not throttle President

Dr.A.P.J Abdul Kalam. He continued the legacy of his predecessor in this behalf. Nothing was

whispered on these thirteen files till the tenure of NDA Government came to an end. With the
emergence of The Unite Progressive Alliance (In short UPA) Government the case of Dhananjoy

Chatterjee came to the fore. Large number of petitions filed by him and on his behalf was

awaiting for disposition. After consultation with Attorney General, to explore way out, President

Dr.A.P.J Abdul Kalam, on 3 August, 2004, rejected his mercy petitions although in principle

Kalam was not in favour of death penalty. Resultantly, Dhananjoy Chatterjee was executed on 14

August 2004 in Kolkata.

With the dawn of new hope, the UPA Government resubmitted all the thirteen petitions to the

office President April 2005 to August 2005including mercy petition of Govindasami (June 2005)

and convicts of Rajiv Gandhi assassination case (June 2005) with a recommendation for

rejection. Instead of signing the petitions, Kalam publicly expressed his dissatisfaction with the

existing system of death sentences and clemency on three occasions in October 2005. His stance

did not deter the Government from forwarding three more petitions, in 2006 and 2007,

accounting to 23 petitions pending on the file of the President. Amongst all he authorized the

commutation for Kheraj Ram on 29 September 2006.

Notwithstanding President APJ Abdul Kalam‟s concern on death penalty, his decision to reject

the petition of Dhananjoy Chatterjee case in 2004 is vibrant. Perhaps, rejection of petitions, in

the above case, by his predecessor made him to reconsider it. Nevertheless, President APJ Abdul

Kalam had well-known way out i.e. of not taking a decision, a tactic he has subsequently

adopted.

The most poignant situation swirled, President APJ Abdul Kalam, was of Afzal Guru‟s mercy

petition. It was more a political issue than legal. The political parties were in a hush to have a

day out of it. There were attacks and counter attacks between the ruling party and others on this

issue. However, then UPA Government was not keen on to execute Afzal Guru. Thus, it used to
assign vivid reasons for not having acted upon. One patent, a false, claim advanced was that the

decision was that of the President and not the Government. The second claim set-forth was that

the decision was delayed, as the petition is pending on the file, at the instance of the President

APJ Abdul Kalam. However, he did not ascribe any personal views on the case or how he would

have dealt with a rejection.

Smt Pratibha Devisingh Patil(2007-2012)

On the day of assuming the office, by Pratibha Devisingh Patil, about twenty-three mercy

petitions were pending on the file with an advice to reject. At the beginning of her days she, fell

on the lines of K R Narayanan andDr.APJ Abdul Kalam, disinclined to stand by the advice of the

Government and returned quite a few petitions for reconsideration. The approach initially

exhibited, by her, did indicate that she is not a mere executive head to rubber-stamp executive

decision on petitions but could act independently, with limited powers, to the fullest possible

extent. However, gradually ahead of demitting office, she ventured to set a record which was

never heard here before in the annals of Indian History. She, generously, has granted 30 pardons,

over 90 per cent of India's total death sentences pardoned ever, who are involved in heinous

crimes. Amongst them 22 convicts were accused of brutal multiple murders and gruesome

crimes on children, the worst of what human beings can do to one another. Some are rogues who

lived on the edge of law and bounced in and out of the penal system for most of their adult lives.

Among those, granted pardon include Sushil Murmu, Molai Ram and Santosh Yadav.

Pranab Mukherjee (2012-Till date)

Incumbent President Pranab Mukherjee, has demonstrated his resoluteness in rejection of

mercy petitions and thus, allowed executions to continue. His regime, so far, has witnessed
rejection of four mercy petitions and two executions. President of India Pranab Mukherjee‟s

approach toward death row mercy pleas is so different from his predecessor, Pratibha Patil.

The President of India, generally, is not expected to take deviation from the advice

rendered by the Council of Ministers while considering a mercy petition. There may be

occasions, as reported, to thwart the President from taking any decision on mercy petition and

entailing to keep it under pending consideration.

That there are no accurate records of the mercy petitions considered since India‟s

independence shows the callousness of the Government of India on the question of life and death

and the respect for human dignity. In 2013, the Government of India informed the Supreme

Court that over 300 mercy petitions were filed before the President by convicts on death row

between 1950 and 2009. The Government of India was obviously unaware that it had earlier

informed the Rajya Sabha, upper house of Indian Parliament, on 29.11.2006 that 1,261 mercy

petitions were disposed of by the President between 1965 and 2006 alone. Other studies

indicated that about 3,796mercy petitions were filed with the President between 1947 and 1964.

Information collated by Asian Centre for Human Rights (ACHR) shows that since India‟s

independence, a total of 5,106 mercy petitions were filed by death row convicts from 1947 to

2015 (as on 05.08.2015). Of these, 3,534 mercy petitions or 69% were rejected while death

sentences in 1,572 mercy petitions or 31% were commuted to life imprisonment.

The table annexed herein details of the disposition of mercy petitions by various Presidents till

date.
Table-1 Details of Mercy Petitions Decided by the President
Death sentence of 306 convicts has been commuted by successive Presidents of India so far out

of total 437 mercy petitions- As per Law Commission of India 262nd report, which has given a

chart of mercy petitions disposed of by successive Presidents since January 26, 1950 till

September 1st 2015, in its report released on death penalty. Between 1950-1982, India has

witnessed, six Presidents, rejection of only one mercy petition as against 262 commutations of

death sentence to life imprisonment. President Dr.Rajendra Prasad, during his tenure, has

commuted the death sentences in 180 out of the 181 mercy petitions and rejected only one.

President Dr.Radhakrishnan commuted the death sentences in all the 57 mercy petitions which

he has attended. President Zakir Hussain and President V V Giri commuted the death sentence in

all the petitions on which they sat over. While President Fakrudhin Ali Ahmed and President

Neelam Sanjiva Reddy did not get the occasion to deal with any mercy petitions in their tenure.

In contrast to the first phase (1950-1982), between 1982 and 1997, the three successive

Presidents have rejected 93 mercy petitions and commuted seven death sentences. President

Gyani Zail Singh rejected 30 mercy petitions outof 32 and President R Venkatraman rejected 45

mercy petitions of out of 50. Whereas, President Shankar Dayal Sharmahas rejected all the 18

mercy petitions placed before him.

In the third phase,i.e. between 1997-2007,we had only two Presidents. No head-way was

made on any mercy petitions during the regime of President K R Narayanan. However, President

APJ Abdul Kalam, while he was in office, has rejected one and commuted another.

President Pratibha Patil had set a record by rejecting five mercy petitions and commuting 34

death sentences. The present President of India, Shri Pranab Mukherjee has thus far rejected 31

of the 33 mercy petitions.

A cursory look on the table reveals that the disposition of mercy petition is largely depending

upon the ideology and views of the government of the day and personal stance of the President.

Table-2 Mercy Petitions in India - Mercy Petitions Disposed Decade Wise

The above table shows the gradual decline in the disposition of mercy petitions. Between 1948-

1954 had witnessed 1410 disposal, 1955-1964 had 2083 disposals, 1965 -9174 had 1034

disposals, 1985-1994 had 45 disposals, 1995-2006 had registered, just 9, all time low disposals

and in 2006-2015 the rate of disposal raised to 48.

The rate of disposal of mercy petition in first 26 years of independence was 94% whereas

remaining 6% were disposed in the following 41 years.The reason for such a fall in the rate of

disposal, according to Bikram JeetBatrais the introduction of Code of Criminal Procedure, 1973.

The new Code has modified the life imprisonment to ordinary punishment for murder and death

sentence as an exceptional punishment. The verdict of Supreme Court, in Bachan Singh, has

reared the aspirations of the legislature by ordaining that the death penalty shall be awarded only

in „rarest of rare‟ case. This plausible factor is the root cause for the reduction of death sentences

and number of mercy petitions to the President during the post 1970s.Ever since independence,

no consistency is maintained either in rejection of mercy petitions or commutation to life

sentence. First six years of independence has witnessed 24% commutation, 1955-1964 has

accounted it to 29%. The highest percentage of commutations was recorded, i.e. 52.50%, in

1965-1974. Least percentage of commutations was registered, i.e. 8.9%, in 1985-1994. Again, it

was raised to 43.8% in 2006-2015.

Table 3-Percentage of Commutation & Rejections of the Former and Incumbent Presidents

The above table depicts zero maintenance of steadiness in decision making on mercy petitions.

President R Venkataraman rejected all 40-mercy petitions whereas President Prathiba Patil

rejected just 3 out of 22 mercy petitions. President Pranab Mukherjee, on the other hand, had

92%rejection rate. Shankar Dayal Sharma has accounted 70% rejection and 30%

commutation. President Dr. A P J Abdul Kalam maintained the rate of rejection and

commutation at 50% each. Nothing is reflected during the regime of the President K R

Narayanan on mercy petition.

 CHAPTER
LITERATURE REVIEW

Chugh Ashish "IS THE SUPREME COURT DISPROPORTIONATELY APPLYING THE

PROPORTIONALITY PRINCIPLE?" :

In case of E.P. Royappa v State of T.N.As responses to the statutes, any order or statutory and

rules, the Supreme Court held that where will be applicable of primary review doctrine. The

secondary review is applicable in relation to the action in case where the executive is guilty in

act of illogically 10 .

Assoc. Provincial Picture Houses Ltd v Wednesbury Corpn.:

This case lay down various basic principles. The case treated him as the landmark judgments of

famous case, commonly known as the Wednesbury’s case. The doctrine of proportionality has

equated with Wednesbury’s case. For example, punishment in the proceeding of department may

unreasonableness in relation to other administrative actions 11.

Rajesh Kumar, "Universal's Guide to the Constitution of India" :

Stated in L. Chandra Kumar v U.O.I, the judges of higher judiciary have been entrust with the

duty of preservation of constitution that the power to interpreted, it has observed by Supreme

Court of India. The judges who have to make sure, that the equilibrium of control in the

discharge of function under the Constitution, however, executive and legislatures do not, in the

discharged of function and constitution limitation 12 .

Dr Justice A.S.Anand Justice in his N.D. Krishna RaoMemorial Lecture:

Justice Anand stated in his lecture that the rule of law lies with the judiciary and rule of law is

the foundation of democratic system, that it is the most important accountability for execution.
The exercise of new powers from parliament which cannot be altered and the judicial review is a

basic feature of Constitution now 13 .

H.M. Seervai, in his “Constitutional Law of India”:

Seervil in his book Constitutional Law of India has mentioned that in strict sense in Indian

Constitution, the doctrine of Separation has no place of Powers. Seervai stated that familiar

feature of the Constitutions of India, Canada and Australia is the principle of judicial review. So

the functions of different organs of the government have been differentiated sufficiently,

therefore, one organ of the government could not seize, the functions of another1.

In Sankari Prasad Singh Deo v. Union of India, (1952 ), Sajjan Singh v. State of Rajasthan,

(1965), I.C. Golaknath v. State of Punjab, (1967):

The decision of the Supreme Court was followed by legislation. Nullified its effect followed by

another decision. re-affirming the earlier position of act. This is the nation witnessed a series of

such events. The government has continued on other issues. In the struggle between the two

wings of government, the power of amending the Constitution of India .

Tripathi, Dr. S.C. "Environmental Law":

In cases of M.C. Mehta v. Union of India, (1996) 4 SCC 351; M.C. Mehta v. Union of India,

(1992) 3 SCC 256, the Supreme Court in these case stated that affect the life of citizen, it

significant modification to the Constitution, or drawing-up of schemes and bye-laws of

municipal bodies, and any other Act is amenable by the judicial review.

In case of Vishaka v. state of Rajasthan:

In the above case Supreme Court stated that the by giving proper directions, courts may interfere

and fill-in the vacuum. To meet the need of the hours, if the legislature fails, the Supreme Court
field tills them the suitable legislation is enacted to occupy, and these directions would be

binding and enforceable in law .

Entry 2A of List I and Entry 2 of List II, Seventh Schedule:

The petitioner put forth an argument based on two basic features of the Indian Constitution, in

case of Committee for Protection of Democratic Rights v. State of West Bengal, 2001 Cri.L.J.

2307, that the basic features are federal setup and separation of powers. The state legislature has

jurisdiction over police matters as per constitutional and statutory provisions. It is to state that

without the consent of the concerned state government, the parliament cannot encroach upon it

18 .

Ruma Pal, (Rtd. SC, J.) In his “Judicial Oversight or Overrich”:

The Constitution allows for parallelism of power, with hierarchies between the three organs in

particular fields as stated retired Supreme Court Judge Ruma Pal. That the subject to checks by

the other two, which must be maintained and balanced by each organ.

Parmanand Singh, In his “Protection of Human Rights”:

Parmanand Singh in his book Protection of human Rights mentioned that to access to legal

information may also lead to the cancellation, diffusion or defiance of liberate judicial directions,

weak communication channels accompanied by well-nurtured and well-structured barriers stated

by Lower Echelon legal actors 20 .

Rajeev Dhavan In his “Law As Struggle: Public Interest Law in India”:

Ravjeev Dhavan in his book Law as Struggle: Public Interest Law in India Stated that successive

political regimes have provided enormous resources as well as legal and normative value system

favourable to the new social classes, that the economic policies of liberalization and privatization
are pursued. It have caused due to atrocities on women, pauperization, massive In State of West

Bengal v. The Committee for Protection of Democratic Rights:

In this case Supreme Court held that, to investigate an offence without the consent of the state

government, a High Court can direct the Central Bureau of Investigation (CBI) within whose

territorial jurisdiction the offence is alleged to have taken place.

In Rupa Ashok Hurra v. Ashok Hurra and Another:

That the Supreme Court’s final decisions via Article 32, for one, it got rid of the practice of

litigants attack, however, it added a new dimension to its exercise of inherent power in the same

vein 24.

Oberoi Namit in "THE RIGHTTO PRIVACY: TRACING THE JUDICIAL APPROACH

FOLLOWING THE KHARAK SINGH CASE" :

Art.17, International Covenant on Civil and Political Rights in respect that the right to privacy at

International level, the European Convention of Human Rights and the International Covenant

on Civil and Political Rights (of which India is a signatory) have been recognized in these

Conventions.

In ADM Jabalpur v. Shiva kant Shukla case:

In the Constitution and statute law, if the right to personal liberty is limited by any limitations

other than those expressly contained, Supreme Court sought to determine. Article 21 is not the

sole repository of the right to personal liberty, without the authority of laws no one shall be

deprived of his life and personal liberty, as observed by Khanna Judge of Supreme Court. It

flows equally from statutory law like the penal law force, and not merely from common law in

India .
In People’s Union for Civil Liberties v Union of India:

That right to privacy is a part of the right to life and liberty under Article 21 and it cannot be

curtailed except according to procedure established by law, the Supreme Court held in the

unemployment, state oppression and children and dalits. To check the growing frustration among

the exploited and oppressed classes, the applauded and publicized judicial activism has

completely failed .

In I.R. Coelho v. State of Tamil Nadu Case:

That the law which has been declared void because of violation of fundamental rights, that

shown about the incapacity of the legislature to retrospectively validate a law, it has now become

acceptable. context of telephone tapping. The court stated that constitute an important facet of a

person’s private life so that the conversations on telephone are often of an intimate nature .

Khan Nuzhat Parveen, in “Arti National Security, Terrorism And Administration of

Justice”:

Whereas legislation is ordinarily permanent in that, it persists unless and until repealed by

subsequent legislation; such a device makes the law to which it applies temporary. It is provide

that for the expiry of a law or part of a law at a later date, as the said a sunset clause is a legal

provision, thus results in the continuance of the law as the legislative failure to act. It is to state,

subject to a sunset clause is contingent upon some future action by the legislature however, by

contrast, the continued validity of legislation.

In Rameshwar Prasad v. Union of India case:

The proclamation of President's rule under Article 356 of the Constitution, the Supreme Court of

India reviewed the constitutional validity of the Union's dissolution of the Bihar State legislative

assembly and declared that, it had the power to restore a dissolved assembly in an appropriate
case, the Court held that the dissolution of the state assembly and the proclamation of President's

rule was unconstitutional .

Buzinger Martin in“POSITIVE ACTION DECLARED UNCONSTITUTIONAL":

In State of Rajasthan v. Union of India as this would signify that there had been no satisfaction at

all, the Supreme Court conceded that the exercise of the power may be challenged on the ground

that satisfaction was mala fide or based on wholly extraneous and irrelevant grounds. One is left

with the impression that while the judges wanted to limit very severely the scope of judicial

review, at the end of the day and the interpretation of the "political question" doctrine. The action

taken by the union government appears to have found its way into their judgments, as some of

the judges' have its own way of viewsAharon Barak., In his “A judge on judging”:

Asaron in his book "A Judge on Judging" provide a continuing framework for the legitimate

exercise of governmental power" and his interpretation, as the Sabharwal C.J. cited with

approval Aharon Barak's view that Constitutions aim, to perform his constitutional functions,

furthers this goal by allowing the governor .

Dicey, In his “Law of the Constitution”:

Dicey in his book law of the constitution mentioned as in the earlier editions of Dicey that the

rule of law is an essential part of accountability, of course he modified in later editions there is

something inconsistent with the rule of law, therefore, that conferment of any discretion tends to

arbitrariness. The conferment of some discretion for the purpose of application to the facts of a

given case is something you cannot do away with, but then, as when time passed that it was

realized by Dicey.

Dr. Tilok Nath Arora, Speaks of “Judicial Strictures”:

Spoken, in lecture of judicial Strictures which is even more onerous to keep the judicialship

afloat on even keel, as the Judges have a duty to perform. Particularly, when the decision appears

to break new grounds, it must avoid making any ad hoc decision without the foundation of a

juristic principle. To avoiding saying more than that, the judgments must be rendered with

restraint in speech, clear, precise, logical and sober, which is necessary in the cas.

Benjamin N. Cardozo, Speaks of “The Nature of Judicial Process”:

The domain into the executive and the legislature by formulating policy and issuing directions in

respect of various aspects of the country's administration, transgressed, the Supreme Court has

given directions. The principles for an expanding future, Constitution states or ought to state not

rules for the passing hour, As Justice Cardozo Speaks of The Nature of Judicial Process.

The rules of standing have come into existence, it is with this view of that innovations Kapur,

Anupchand, in his “The Indian Political System”:

Kapur stated in his book The Indian Political System that the Supreme Court cannot refuse relief

under Art. 32 where, therefore, the infringement of a fundamental right has been established. The

protector and guarantor of fundamental rights by Art. 32(1), the Constitution of India has

assigned to the Supreme Court a special role

Basu, D.D., in his “Introduction to the Constitution of India”:

Basu stated in his book Introduction to the Constitution of India that the Supreme Court may

grant special leave to appeal from any judgment or final order in any matter or in case passed by

any court or tribunal in the territory of India, in its discretion, if a case in question does not fall

into the above appellate categories. Under a law relating to the armed forces, this does not apply

to the judgments. The special leave petitions are given in Art. 136 under the provisions relating

to Constitution of India .
Jha, Chkradhar, in their “Judicial Review of Administrative Acts”:

Chkradhar, in his book of Judicial Review of Administrative Acts stated that imposes limitations

on the power of the government and banks on majority rule to avoid tyranny and arbitrariness,

India has limited and Constitutional of democracy. The cardinal features of Indian Constitution

that the Judicial Review system is one of them. The equality and justice to all citizens of India,

the Preamble of the Indian Constitution has promised and it is also promised in preamble that the

laws of India are liable to be tested judicially. That the some impartial body is essential for the

maintenance of democracy that should in the existence because, to be addicted to tyranny, the

majority rules though the best rule is found generally.

In State of Maharashtra v. Madhav Rao case:

The original statutes as well as amending acts would be deemed to be included in Schedule Nine,

It held by the Supreme Court in case of State of Maharashtra v. Madhav Rao. It is intended to

refer to that Act with all the amendments made in up to date of reference; the reason is that

ordinarily, if an Act is referred to by its title .

Raman, Sunder, in his “Judicial Invalidation of Constitutional Amendments in India”:

Raman, Sunder, in his book of Judicial Invalidation of Constitutional Amendments in India that

the repository of the Supreme will of society and the legislature is the fundamental organ of the

State. It should be in tune with their particular culture and the times if they have to be useful and

lasting that is the fundamental concepts. That the Constitution must develop out of the life and

aspirations of the people notwithstanding the supremacy of the Constitution, this is the rationale

of the vast amending power of the legislature.

Ashok H. Desai and S. Muralidhar, in “Public Interest Litigation”:

To shape innovative remedies, stated that the Article 32 has been creatively interpreted, those in

recent decades as the advent of Public Interest Litigation (PIL). That the executive agencies

comply with judicial directions, the continuing Mandamus for ensured. The judges have also

imported private law remedies such as Stay Orders and Injunctions and public law-related

matters under into what are essentially in this category of litigation.

Jurgen Habermas and William Rehg, in “Constitutional Democracy”:

The co-equal branches of the higher judiciary and government is required to scrutinize, as stated

in Constitutional democracy, for that action of its activities. The words democracy and

constitutionalism, it has tensions between the understanding of respectively involve, that

factsituations of this type, that the some scholars it have argued. To the expression of

constitutional democracy, the provision for judicial review assumed to gives a self-contradictory

twist.

Sandra Fredman, in hisHuman rights transformed – positive rights and positive duties:

In his Human rights transformed the positive rights and positive duties stated that the State

Policy's Directive Principles elude objectives of several socio-economic. That in contrast, these

justifiable negative rights which had a positive dimension. The governmental agencies to enable

their fulfillment, their language are couched in the terms of positive obligations, eventhough the

directive principles are non-justifiable.

The use of diesel as a fuel in commercial vehicles, the increasing levels of hazardous emissions;

it was faced with considerable statistical evidence by Supreme Court. In extensive vehicular air

pollution raised in Delhi, file a petition on this problem. To shift, the use of (CNG) in vehicle, it

is ecofriendly energy, the Supreme Court has ordered government-run buses in Delhi decided to

make a decisive intervention.

Susan D. Susman, in his “Distant voices in the Courts of India”:

Stated that the foremost change came in the form of the dilution that the requirement for

initiating proceedings. The actions brought on their behalf by social activists and lawyers, the

Supreme Court allowed, it is required justice for those, who were otherwise very poor, unable to

go court, and not aware his legal rights

 CONCLUSION:

The Constitution of India is based on the principle of federalism witha strong and

indestructible Centre. Governor of a State is the key functionary in the system envisaged by the

Constitution. Vesting the Governor with discretionary powers was justified even in the

Constituent Assembly on the ground that the Provincial Governments are required to work in

subordination to Central Government. He is a vital link between the Centre and the State. The

founding fathers of our Constitution had deliberately conferred certain special and extra ordinary

powers on the Governor. The Governor plays a dual role under the Indian Constitution.

He acts as the constitutional head of the State and performs his functions on the advice of

the Council of Ministers. He also serves as the agent of the Central Government. Our

constitution imposes a duty on the Centre to protect the States against disturbances and to ensure

that every State Government is carried on in accordance with the provisions of the Indian

Constitution. President appoints Governor on the recommendations of the Central Government.

Article 163(2) of the Constitution provides that if there is a conflict of opinion between

the Governor and the ministry as to whether or not a particular matter falls within the scope of

the Governor’s discretionary power, the decision of the Governor in his discretion shall be final

and the validity of anything done by him shall not be called in question on the ground that he

ought or ought not to have acted in his discretion. However, the Punchhi Commission report

recommends that a constitutional amendment be brought about to limit the scope of discretionary

powers of the Governor under Article 163 (2) of the Constitution.

Article 159 of the Constitution imposes a duty upon the Governor to preserve, protect and

defend the Constitution and the law of the Country and he is also responsible for the well being
of the people of the State. Generally, he is to exercise on the recommendations of the Council of

Ministers. But Governor cannot remain merely a figure-head.

He has to fulfill the obligations, which are imposed upon him under the Constitution. For

this purpose, Constitution also confers on the Governor some discretionary powers which make

him powerful. Sometimes the discretionary powers which he/she exercises bring him/her in

controversy. This study about the discretionary powers of the Governor confirms that during the

exercise of circumstantial powers he played a dictatorial role many a times in the interest of the

ruling party at the Centre.

The institution of the Governor was misused to a great extent especially after 1967. The

Governor is not answerable to any court for the exercise and performance of the powers and

duties of his office or for any act done or purporting to be done by him in the exercise and

performance of those powers and duties.1 Efforts have been made by Administrative Reforms

Commission and Sarkaria Commission to make him/her impartial but nothing concrete has come

out.

Governor has the say in the appointment of the Chief Minister in case no party has the clear-cut

majority in the Legislative Assembly. In such circumstances, it is the Governor alone who judges

the situation and being the custodian of the Constitution calls such person to form the ministry,

who is in a position to give stable government in the State. In the exercise of their discretion in

the appointment of the Chief Minister, Governors have not followed any uniform practice. Some

1 Article 361, Constitution of India.

times, Governors invited the leader of the single largest party to form the government 2 and

bypassed the claim of the leader of the alliance group. Some times, Governors invited the leader

of the alliance group to form the government 3 and bypassed the claim of the leader of the single

largest party. Many a times the role of the Governors in the appointment of the Chief Minister

came in controversy.

The power of the Governor with regard to the appointment of Chief Minister is a power which he

exercises in his discretion and this act of the Governor is absolutely immune and it cannot be

questioned even under writ jurisdiction.4 In Mahabir P. Sharma v Prafulla C. Ghose and others 5,

the Calcutta High Court held that "the Governor in making the appointment under Article 164(1)

of the Constitution acts on his sole discretion. The exercise of this discretion by the Governor

cannot be called in question in writ proceedings."

Governor can appoint a non-legislator as the Chief Minister under Article 164(4) but the

provision under this Article is not an enabling provision for appointment of a non-legislator as

Chief Minister for a short duration, instead it is in the nature of a disqualification that he cannot

continue in office without getting himself elected within six consecutive months.

It is necessary to empower the Governor with discretion relating to the assent to State

Bills to avoid hasty legislations and to preserve or protect the Constitution. In the same, the

Governor should act above party politics and in the interest of Nation. If past practice is any

guide, the Centre is wary of controlling State legislation unless it is demonstrably against

national interest or unconstitutional or against well established national policies and perhaps

mere difference of approach is not the determining factor.

2 Rajasthan in 1967, Madras in 1951, Haryana in 1982.

3 Punjab in 1967, Bihar in 1968, West Bengal in 1970 and Maharashtra in 1978.
4 S. Dharmalingam vs Governor of Tamil Nadu, AIR 1989 Mad. 48.
Article 174 (2) (b) of the Constitution clearly shows itself that Governor is not always bound to

accept the advice of the Council of Ministers in relation with the dissolution of the Legislative

Assembly. The past practices followed by the Governors also prove that the Governor is not

bound to accept the advice of the defeated Chief Minister to dissolve the Assembly. In such

circumstances, Governor may use his discretion and act according to his best judgement.

When Governor is satisfied that other party or combination of parties is not in a position to

provide stable government, then Governor should dissolve the House and keep the resigning

ministry in office to act as a caretaker government. The Chief Minister before advising the

Governor to dissolve the House must get it passed in the meeting of the House, because in Kerala

in 1970, when the Chief Minister heading a coalition ministry advised the Governor to dissolve

the Assembly, then his partner parties surprised and criticized this action of the Chief Minister.

Many a times, Governor sends his report to the President and recommends the dissolution of the

Legislative Assembly on unreasonable grounds. There is need for proper convention on the

dissolution of the Legislative Assembly, which may properly guide the Governors on the

dissolution of the House. He should weigh all factors carefully before taking his decision to

dissolve the Legislative Assembly.

The Governors should follow the convention pointed out by the Committee of the

Governors appointed by the President of India, which submitted its report in the year of 1971.

The Committee viewed that “if a Chief Minister, who enjoys majority support advises

dissolution, the Governor must accept the advice, but if he advises the dissolution after losing his

majority, the Governor need to accept the advice only if the ministry suffers a defeat on question
of major policy and the Chief Minister wishes to appeal to the electorate for a mandate on that

policy.

In the case of a Chief Minister heading a single party government which has been

returned by the electorate in absolute majority, if the ruling party loses its majority because of

defection by a few members and the Chief Minister recommends dissolution so as to enable him

to make a fresh appeal to the electorate, the Governor may grant a dissolution.

In dismissing the Council of Ministers, Constitution does not explicitly confer any such power

on the Governor but he is to protect and preserve the Constitution. He cannot sit with his eyes

closed from the affairs of the State. In reality, he is the person on the spot to play a vital role in

specific circumstances. Mentioned examples clearly show that many a times Governors abused

their power and dissolved the ministry in haste. Some guidelines were provided by the

Committee of Governors but even after the report of the Committee, Governors continue to

exercise their discretionary power in an arbitrary and partisan manner.

Generally, Governor should not dissolve a ministry when it enjoys the majority support in the

Legislative Assembly and works for the betterment of the State under the Constitution. But if he

feels that the ministry has lost the majority then he may use his discretion and dissolve the

ministry. The majority of the ministry can only be decided on the floor of the House. In case of

political crisis a ministry is to seek a vote of confidence in the House. If a no-confidence motion

is passed against a ministry, this is a clear proof that the ministry has lost the confidence of the

majority in the House. Hence, the majority of the ministry cannot be judged on the basis of

information or material extraneous to the proceedings in the Assembly. The Governor should

wait till the ministry is voted out of the office by the House itself.6

6 Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 2007, p. 533.
 The Governor summons the Assembly on the advice of the Chief Minister and six months

shall not intervene between its last sitting in one session and the date appointed for its first sitting

in the next session. But because it is unconstitutional for a government to remain in the office

when after defection of some members of the House, the ministry is likely to come in minority.

In such circumstances, the Governor cannot be a silent spectator of the situation. He cannot wait

for the advice of the Chief Minister to call the Assembly, till the expiration of the six months.

Governor has the discretion in proroguing the State Legislature even though the convention is

that the Governor acts on the advice of the Chief Minister. Past practice clearly shows that the

Governor many a times prorogued the House in partisan manner to provide the benefits to the

party in power in the State.

Article 356 provides very drastic powers in the hands of the Centre. During the debates in the

Constituent Assembly, when a question was raised by some members to Dr. B.R. Ambedkar that

Union can find at any time that any State Government is attempting to subvert the Constitution

and it is its duty to suppress the subversive activities. On this question, Dr. Ambedkar answered

that it shall be the duty of the Union to maintain the law in the Provinces as enacted by this

Constitution. But he also cautioned and defended this drastic provision under this Article by

saying that this Article will never be called into operation and that it would remain as a dead

letter.7 Article 356 was inserted in our Constitution with a view to restoring the democratic

pattern of our Parliamentary System. For this purpose, the makers of the Constitution

strengthened the hands of the Centre through Article 355 besides Article 356 of the Constitution.

During the Constituent Assembly debates some members observed that the inclusion of the word

“otherwise” in Article 356 would widen the scope of the central intervention. Dr. B.R. Ambedkar

7 Vol. IX, CAD at 133.

himself realized the fact that the possibility of Article 356 being misused could not completely

be ruled out.8 Generally, Article 356 provides remedy for a situation, where there has been an

actual break-down of the constitutional machinery of the State.

Governor acts on the aid and advice of the Council of Ministers or the Governor is merely a

constitutional head and the real power is vested in the Council of Ministers. This concept is right

and sound if the commanding party in the State is the same as that in the Centre or if the Union

Government and the State Government are run by the same political party or group. At this time

the role of the Governor generally remains beyond the public controversy.

Sarojini Naidu at one time the Governor of Uttar Pradesh said that she considered herself “a bird

in a golden cage”, similarly the Governor of Madhya Pradesh, Mr. B. Pattabhi Sitaramayya also

observed that he had no public functionto perform except making the fortnight report to the

President.9 But if the State Government is run by different party than the commanding party at

Centre, the role of the Governor may become publicly controversial or in other words, under this

circumstances Governor’s role does not make him merely an ornamental figurehead, but he plays

an important role in the administration of the State. Study of the discretionary powers of the

Governor reveals that under such circumstances many a times Governor acted as the agent of the

Centre.

The language of Article 356 is very wide and loose. Any abuse or misuses of this drastic power

may damage the fabric of the Constitution. The purpose of Article 356 is that the Centre can take

remedial action to put the State Government back in its place so that it can function according to

the Constitution. In case of ministerial crisis, the Centre should invoke the Governor’s power and

hold fresh elections and in the meantime keep the ministry in office as a caretaker government.

8 Dr. N.S. Gehlot, The Office of the Governor – its Constitutional Image and Reality,
Chugh Publications, Allahabad, 1977, p. 163.
The study of use of Article 356 appears that the commanding party at the Centre uses this Article

for political purpose rather than for restoration of the constitutional government in the State. The

Office of the Governor is mainly used under this Article to serve the interests of the ruling party

in the Centre and the imposition of President’s rule has become a normal feature.

About the invocation of Article 356 Justice K. Ramaswamy 10 viewed that “the exercise of

the power under Article 356 is an extraordinary one and needs to be used sparingly when the

ituation contemplated by Article 356, warrants to maintain democratic form of government and

to prevent paralyzing of the political process. Single or individual act or acts of violation of the

Constitution for good or bad or indifferent administration does not necessarily constitute the

failure of the constitutional machinery or characterizes that a situation has arisen in which the

government of the State cannot be carried on in accordance with the Constitution.”

For the imposition of President’s rule under Article 356 of the Constitution, the Sarkaria

Commission viewed that “Article 356 should be used very sparingly, in extreme cases, as a

measure of last resort, when all available alternatives fail to prevent or rectify a break-down of

constitutional machinery in the State. All attempts should be made to resolve the crisis at State

level before taking recourse to the provisions of Article 356.” 11 After the Supreme Court

judgment in the Bommai Case, the Centre has been reluctant to use the powers under Article

356.

The Centre prior to imposition of President’s rule should do its best to control the situation in the

State and should not use this Article in haste and try its best to settle the political scores. At the

time of exercising Article 356, Centre is presumed to be very careful otherwise an injury may be

caused to the federal fabric of the Constitution.

10 S.R. Bommai vs UOI, AIR 1994 SC 1918.

11 Sarkaria Commission’s Report on Centre-State relations, p. 178.
Governor has the power to grant pardon but he does not have the power to pardon sentence of

death. Regarding death sentence, he can only suspend, commute or remit the same. Governor

cannot exercise this power as per his own judgement. He has to follow the guidance given by the

government.

To control the differences between the Centre and the States, the Central Government has set up

a new Commission in April 2007 under the Chairmanship of Justice M.M. Punchhi to look into

the issues of Centre-State relations in view of the sea changes that have taken place in the polity

and economy of India since the Sarkaria commission had last looked into the matter.12 The

Commission reviewed the working of the existing arrangements between the Union and the

States and submitted its report on April 19, 2010 to the Union Home Minister, Sh. P.

Chidambaram.

Lastly, it can be concluded that Governor is not mere a figure head and the discretionary powers

given to him under the Constitution of India make him a very powerful functionary in the

Parliamentary form of government in India and being the head of the State, he is suggested to

avoid getting himself involved in Party Politics.

 SUGGESTIONS:

On the basis of my research work, I furnish the following suggestions:

1) A politician who is involved in active party politics in the Centre should be avoided to be

appointed as the Governor of a State because his role as the Governor will remain as a politician.

2) A panel of the retied military officials or the other civil officials, who are not in touch with the

politics, can be constituted and Governors may be appointed from this panel.

3) In order to avoid misuse of this august office, persons of great eminence and integrity must be

appointed as Governors. So that they can maintain the dignity and prestige of this august office.

4) To make the office of the Governor independent, its tenure must be constitutionally secured.

So that he can hold office without any fear of his removal. His term of the office should be fixed

for five years. M.M. Punchhi Commission also recommends the fixed tenure of five years. The

procedure of the removal should be changed and the system of the impeachment which is applied

for the removal of the President may be inserted in the Constitution for the removal of the

Governors.

5) A person appointed as Governor should be made ineligible for further appointments to offices

under the Centre or States and also made ineligible for contesting elections.

6) At any time, if there is a clash between the advice given to the Governor by the Centre and the

advice given to him by the Council of Ministers of the relevant State, the Governor should act

according to the provisions of the Constitution in favour of the people of the State. G.S. Pathak, a

noted jurist also said in his speech on April 3, 1970, when he was the Vice-President of India,

“In the sphere in which he is bound by the advice of the Council of Ministers, for obvious
reasons, he must be independent of the Centre. There may be cases where the advice of the

Centre may clash with the advice of the State Council of Ministers. In such cases, the Governor

must ignore the Centre’s advice and act on the advice of his Council of Ministers of the State.”13

7) No doubt that Governor has the discretion in the appointment of the Chief Minister but should

try his best to follow the uniform practice and the guidelines provided by different Commissions.

He should invite such person to form the government, who has agreed to summon the Legislative

Assembly without delay.

8) He should use his discretionary powers only in exceptional and warranted cases or in other

words he should reserve a Bill for President’s assent not liberally but exceptionally or only in

rarest of rare cases. The reason for taking this view is that if the Governor interprets his power

too liberally, it will result in too many State Bills being reserved for the Centre’s assent and this

will jeopardize the system of parliamentary democracy in the State.

9) When a Bill is reserved for the consideration of the President, he can veto any Bill without

giving any reason and no time limit is prescribed for presidential veto. Therefore, the time limit

for presidential veto should be mentioned in the Constitution and a Bill should be deemed to be

passed after the completion of six months which should be calculated from the date since when

Governor sent it for the presidential assent.

10) The mere fact that a few members of the party have defected does not necessarily prove that

the party has lost the confidence of the electorate. If there is a no confidence motion against a

ministry and the Chief Minister instead of facing the Assembly, advises the Governor to dissolve

the Assembly, the Governor need not accept the advice, but should ask the Chief Minister to get

the verdict of the Assembly on the floor of the House. So, if the Chief Minister is trying to avoid
a no-confidence motion and recommends the Governor to dissolve the Legislative Assembly,

then the Governor should not accept his advice.

11) It should not be left to the Governor to determine whether a ministry is or is not enjoying the

majority support of the members in the House. Even if, the members of the House inform in

writing to the Governor about their withdrawal of support, it is the prerogative of the Assembly

to decide this issue. The Governor should dismiss a ministry, only if, the House passes a vote of

no-confidence and the ministry refuses to tender its resignation.

12) The Chief Minister should resign if he has lost the majority support in the Legislature

without waiting any longer. When a question arises as to whether a ministry is in a majority or

not, it should be decided on the floor of the House and a Chief Minister’s refusal to test his

strength on the floor of the House means he has no longer enjoying the confidence of the

Legislative Assembly.14 In the matter of dismissal of the ministry, Governor should act more

cautiously.

13) In case of political instability Governor should impress on the Chief Minister to convene the

early session of the Assembly and it will be the proper sense of Article 174 (1).

14) Governor should use the power to prorogue the House in good faith for the public interest

and protection of the Constitution. When the no-confidence motion is pending or the government

is likely to be in the minority and other important matters like Budget Session is pending in the

House the Governor should avoid proroguing the House either on the advice of the Chief

Minister or without the advice of the Chief Minister.

15) Article 356 should be used in the State as a safety measure. It should be used as a last resort

in the circumstances when the State Assembly fails to discharge its duties within the framework
of the Constitution. All the guidelines provided by the different Commissions15 or the judicial

guidelines should be followed by the Centre prior to the invocation of Article 356.

16) There must be a provision in Article 356 which provides the system of warning by the

President to the State Government prior to proclamation of President’s rule in the State and

taking over the administration of the State.

Constitution should provide detailed provisions regarding the use of Article 356 in light of

different guidelines provided at different times. It is neither wise nor justified to dissolve the

Legislative Assembly each and every time irrespective of the demand of the situation, because

excessive use of power is also misuse of power. The decisions of the Governor must not be

influenced by any sense of being an agent of the Centre.

17) Governor should use the power of pardon only in rarest of the cases and after considering the

effect of the case. Governor should avoid superfluous interference in the functioning of the

judiciary. While exercising the pardoning power, the Governor should keep in mind not only the

welfare of the convict but also the welfare of the public and the impact of release of the convict

on society.

18) Since Governor cannot use his discretionary power in pardon, he has to follow the advice of

the government and particularly the Law Ministry, but Governor cannot remain as a rubber

stamp. There should be some mechanism for using the pardoning power or some discretionary

power may be given to the Governor, so that a check on the nexus between the politics and the

criminals can be imposed.

19) Governor should appoint the Vice-Chancellor of a State University in consultation with the

Chief Minister and the concern minister of the relevant State.

20) A Governor should exercise the discretionary powers, if absolutely based on his own

decision, with great caution. His decision must not be influenced by any sense of being agent of

the Centre. The true constitutional position of the Governor is that he is the head of the State. He

has to act according to the aid and advice of his Council of Ministers, using his discretion

wherever the Constitution allows him.

Lastly, it is opined that for the proper functioning of a parliamentary form of government in

India, it is compulsory that there should be Governor, as the head of the State and he should not

be affected by the rise and fall of the governments. When he uses his discretionary powers, he

must play a constructive role between the Union and the States.
 BIBLIOGRAPHY

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Bhatia, O.P. Singh The Imperial Guptas, Surjeet Book Depot, Delhi Banerjee, A.C. Banerjee

Constitutional Documents, Calcutta, 1945

Chestney, George Indian Polity- a View of the System of Administration in India, London, 1870

Coupland, R. The Indian Problems, Part-I, London 1945

Chatterjee, Sibranjan Governor’s Role in the Indian Constitution, Mittal Publications, New

Delhi, 1992